to grant letters of marque and reprisal being specially delegated to Congress, Congress ought to retain to itself the right of judging of the time when they are proposed to be actually issued. The committee are not satisfied that Congress can, constitutionally, delegate this right."

Congress has, in fact, never authorized reprisals upon private property in time of peace, though reprisals and military expeditions against foreign territory both with and without congressional authorization have often resulted in the destruction of private property, as did the Greytown, Nicaragua, bombardment of 1852, and the Vera Cruz occupation of 1914. By a declaration of war, Congress authorizes general reprisals against enemy property at sea so far as permitted by international law.

Treaties may provide for making captures of private property, as in suppressing the slave trade and seal poaching. The President has power to employ the navy and revenue cutter service to enforce treaties without other authority, though Congress has usually given him express authority.0

International law authorizes the capture on the high seas of pirates at all times and of enemy and certain neutral private prop erty in time of war. The President's powers in this regard derive from international law and are limited by it. He can authorize the capture of enemy and neutral private property at sea only as permitted by that law, which is enforced by prize courts before which captures must be brought for condemnation. Before the courts, an order of the President contrary to international law, unless authorized by express statute, will not justify the captor."1

Private property on land, even of the enemy, is exempt from seizure under international law, except when "military necessity" permits its requisition, sequestration, contribution, or destruction.a The President, it has been held, cannot authorize a general confiscation of enemy property. Thus, said the Supreme Court in Mitchell v. Harmony: 63

60 Supra, secs. 118, 119, 125, 126.

61 Little v. Barreme, 2 Cranch 170.

62 IV Hague Conventions, 1907, Arts. 46–56.
68 Mitchell v. Harmony, 13 How. 15 (1851).

"There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner; but the officer is not a trespasser.

But we are clearly of opinion, that in all of these cases the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified."

Congress, however, under its power to make rules concerning capture on land and water may authorize seizures contrary to international law.* In Brown v. United States, during the War of 1812, Chief Justice Marshall refused to permit the confiscation of British property on land since Congress had not expressly acted."

"Does that declaration (of war), 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. . . . 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."

In view of these decisions, and considering the Emancipation Proclamation of January 1, 1863, as a general confiscation of a particular type of enemy property by proclamation of the President, there is serious ground for doubting the constitutionality of that proclamation. The doubt, however, was very soon, removed

64 Miller v. U. S., 11 Wall. 268; Willoughby, op. cit., p. 1220.

65 Brown v. U. S., 8 Cranch 110 (1814). It is doubtful whether international law at present confers a "right of confiscation even upon the sovereign authority. Supra, note 62.

Richardson, Messages, 6: 85, 96, 157; Burgess, Civil War and Reconstruction, 2: 117; Rhodes, History of U. S., 4: 70, supra, sec. 47, note 59.

by passage of the thirteenth amendment. During the Civil War, Congress authorized the confiscation of many kinds of enemy property on land, and during the World War it authorized sequestration of such property in the United States by an alien property custodian.67

219. Commercial Pressure and Retaliation.

Through its power to regulate foreign commerce, the postal service and by implication all means of conveyance and transmission of intelligence with foreign nations, Congress may bring pressure by means of retorsion, retaliation, non-intercourse and embargoes.

68

Measures of retorsion and retaliation have been frequent. Thus by an act of 1818, "the ports of the United States were closed, after September 30, 1818, against British vessels arriving from a British colony which, by the ordinary laws, was closed against American vessels." 08 The general revenue act of September 8, 1916, provides for retaliation against British commercial restrictions, the black list and mail seizures although that country was not specifically referred to. An act to protect American oil investors abroad by retorsion was thus referred to in a note of November 10, 1920, protesting against the Allied policy in Asia Minor: 70

69

...

"The General leasing law of February 25, 1920, has not always been thoroughly understood. It proposes to treat the citizens of any foreign country precisely as that foreign country treats our citizens. It is no more restrictive than the golden rule. It is a purely defensive provision. . . . At the same time the United States must be prepared to meet promptly and effectively any unwelcome developments or any kind of competition that may fall to our lot with the purpose of safeguarding, so far as may be in our power, the future security of this country."

Non-intercourse measures and general embargoes were used during the French Revolutionary and Napoleonic wars to bring pressure upon the belligerents and on March 14, 1912, an act was 67 Supra, note 64. Trading with the Enemy Act, Oct. 6, 1917, secs. 6, 7, 40 Stat. 415-416; Comp. Stat., sec. 31151⁄2cc, d.

68 83 Stat. 432; Moore, Digest, 7: 106.

69 9 39 Stat. 799, secs. 805, 806; Comp. Stat., sec. 8830qr; Am. Year Book, 1916, pp. 68, 69, 73.

70 This act (Feb. 25, 1920, sec. 1) was also referred to in a note to the Netherlands government on April 19, 1921, protesting against exclusion of American interests from oil development in the Djambi fields in the Dutch East Indies.

passed authorizing the President to embargo arms and munitions bound to American countries in a condition of domestic violence." In all of these acts power has been delegated to the President to decide when the circumstances contemplated by the act exist and by proclamation to put it into effect. This delegation has been justified on the same theory as delegation in reciprocity acts, that it is delegation to find on a fact and not to determine a policy." The general power of Congress to prohibit importations or exportations has been sustained under the commerce clause.73 Congress also has power under this clause to regulate cables, radio and telegraph used in foreign commerce but in this field the President has been held to have concurrent powers: 75

"The President has charge of our relations with foreign powers. It is his duty to see that, in the exchange of commodities among nations, we get as much as we give. He ought not to stand by and permit a cable to land on our shores under a concession from a foreign power which does not permit our cables to land on its shores and enjoy there facilities equal to those accorded its cable here. For this reason President Grant insisted on the first point in his message of 1875.

"The President is not only the head of the diplomatic service, but commander in chief of the Army and Navy. A submarine cable is of inestimable service to the Government in communicating with its officers in the diplomatic and consular service, and in the Army and Navy when abroad. The President should, therefore, demand that the Government have precedence in the use of the line, and this was done by President Grant in the third point of his message.

"Treating a cable simply as an instrument of commerce, it is the duty of the President, pending legislation by Congress, to impose such restrictions as will forbid unjust discriminations, prevent monopolies, promote competition, and secure reasonable rates. These were the objects of the second and fourth points in President Grant's message.

"The President's authority to control the landing of a foreign cable does not flow from his right to permit it in the sense of granting a franchise, but 71 Moore, Digest, 7: 142-151; 37 Stat. 630; Comp. Stat., sec. 7677.

72 The Brig Aurora, 7 Cranch 382, 388, approved in Field v. Clark, 143 U. S. 649 (1892); supra, sec. 60.

78 U. S. v. The William, 28 Fed. 614 (1808).

74 Pensacola Tele. Co. v. Western Union, 96 U. S. 1 (1878).

75 Richards, Acting Att. Gen., 22 Op. 13; Moore, Digest, 2: 462. An act of May 27, 1921, requires Presidential license for the landing and operation of cables connecting the United States with foreign countries and authorizes the President to withhold or revoke licenses in pursuance of stated objects similar to those referred to in this opinion. See Wilson, Am. Jl. Int. Law, 16: 78.

from his power to prohibit it should he deem it an encroachment on our rights or prejudicial to our interests. . . . I am of the opinion, therefore, that the President has the power, in the absence of legislative enactment, to control the landing of foreign cables."

Prohibition by Congress of the importation of particular goods, such as lottery tickets, obscene literature, low grade teas, prize fight films, etc., has also been resorted to as a protective measure and has been sustained by the courts.76 Similarly the XVIII Amendment has provided for the prohibition of the import or export of alcoholic beverages.

Treaties may require the prohibition of commerce in certain articles but ordinarily legislation is necessary to execute such provisions." Thus the commerce in opium with Corea is prohibited by article VII of the treaty of 1882 but express provision is made that it "shall be enforced by appropriate legislation on the part of the United States and of Chosen."

According to international law, as applied by American courts, trading with the enemy automatically becomes illegal by the declaration of war, unless licensed by authority of Congress or the President. Congress has, however, usually passed express acts prohibiting such trade.78

220. Exclusion, Expulsion and Internment of Aliens.

Finally as a defensive measure Congress has authorized the exclusion and internment of alien enemies in time of war and the exclusion and expulsion of aliens of defined classes and nationalities in time of peace.79 The power of Congress to pass such acts has

76 Buttfield v. Stranahan, 192 U. S. 470 (1904); Weber v. Freed, 239 U. S. 325.

77 Supra, sec. 59; infra, sec. 256.

78 Trading with the Enemy Act, Oct. 6, 1917, 40 Stat. 411; Comp. Stat. 31152a.

79 Alien enemies, Rev. Stat., 4067, amended April 16, 1918; Comp. Stat., sec. 7615; Chinese Exclusion and Expulsion, May 6, 1882, 22 Stat. 58, amended 1884, Comp. Stat., sec. 4290, and act Sept. 13, 1888, 25 Stat. 479, Comp. Stat., 4313; exclusion and expulsion of undesirable aliens, act Feb. 5, 1917, secs. 3, 18, 19, 39 Stat. 875, 887, 889, and act Oct. 16, 1918, 40 Stat., c. 186, sec. I, Comp. Stat., 42894 amended May 10 and June 5, 1920, 41 stat. 593, 1009. An act of May 19, 1921, excluded all aliens beyond 3 per cent. of the number from that country resident in the United States.