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In U. S. v. Smith (5 Wheaton, at page 157), the court said: To define piracies, in the sense of the Constitution, is merely to enumerate the crimes which shall constitute piracy; and this may be done either by a reference to crimes having a technical name and determinate extent, or by enumerating the acts in detail upon which the punishment is inflicted.

When an act of Congress, making it an offense to endeavor to make a revolt on the high seas, does not define the offense, it is competent for the court to give a judicial definition of it.

U. S. v. Kelly, 11 Wheaton, 417. Murder or robbery committed on the high seas may be an offense cognizable by the courts of the United States, although it was committed on board of a vessel not belonging to citizens of the United States, as if the vessel had no national character, but was possessed and held by pirates, or persons not lawfully sailing under the flag of any foreign nation.

U. S. v. Holmes, 5 Wheaton, 417. Robbery committed on a ship belonging to subjects of a foreign State by one not a citizen of the United States, is a crime only against such foreign State, and not punishable in the courts of the United States.

U. S. v. Palmer, 3 Wheaton, 610; U. S. v. Kessler, Baldwin, 15, 22. Murder committed at sea on board a foreign vessel is not punishable by the laws of the United States if committed by a foreigner upon a foreigner, but otherwise as to piracy, for that is a crime within the acknowledged reach of the punishing power of Congress. In U. S. v. Bowers (5 Wheaton, 198), the court said:

Nor is it any objection to this opinion, that the law declares murder to be piracy. These are things so essentially different in their nature, that not even the omnipotence of legislative power can confound or identify them. Had Congress, in this instance, declared piracy to be murder, the absurdity would have been felt and acknowledged; yet with a view to the exercise of jurisdiction, it would have been more defensible than the reverse, for in one case it would restrict the acknowledged scope of its legitimate powers, in the other extend it. If, by calling murder piracy, it might assert a jurisdiction over that offense committed by a foreigner in a foreign vessel, what offense might not be brought within their power by the same device? The most offensive interference with the government of other nations might be defended on the precedent. Upon the whole, I am satisfied that Congress neither intended to punish murder in cases with which they had no right to interfere, nor leave unpunished the crime of piracy in any cases in which they might punish it. By high seas are meant all tidewaters below low-water mark.

U. S. v. Pirates, 5 Wheaton, 184; U. S. v. Wiltberger, 5 Wheaton, 76, 94. Where an American citizen has discovered an unoccupied guano island, which the President under authority of Congress has recognized as part of the United States, Congress may ordain that crimes committed there shall be considered as though committed on a domestic vessel on the high seas.

Jones v. U. S., 137 U. S., 202. The law of nations requires every national government to use “due diligence" to prevent a wrong, being done within its own dominion to another nation with which it is at peace, or to the people thereof; and because of this the obligation of one nation to punish those who, within its own jurisdiction, counterfeit the money of another nation has long been recognized.

U. S. v. Arizona, 120 U. S., 484. And this applies with equal force to counterfeiting the securities of a foreign nation.

U.S. v. White, 27 Fed. Rep., 201. And to counterfeiting notes of a foreign bank or corporation, or having in possession the plates from which may be printed counterfeits of the notes of foreign banks or corporations, whether such securities are national, municipal, or corporate.

U. S. v. Arizona, 120 U. S., 483. The power of the United States to pass and enforce a statute protecting rights secured by the law of nations does not prevent a State from providing punishment for the same thing.

U.S. v. Arizona, 120 U. S., 487.
People v. McDonnell, 80 Cal., 285.




To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. War is “that state in which a nation prosecutes its right by force.”

The Prize Cases, 2 Black, 635, 666. It may exist without being declared, through the hostile acts of a foreign power or through armed insurrection, and may then be recognized and repelled by the President as Commander in Chief of the Army and Navy.

The Prize Cases, 2 Black, 635, 668. The rule that in the enforcement of provisions guaranteeing civil rights, Congress is limited to the enactment of legislation corrective of any wrong committed by the States and not by the individuals, does not apply to those cases in which Congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such powers to the States, as in the regulation of commerce,

the coining of money, the declaring of war, etc. . In these cases Congress has power to pass laws for regulating the subjects specified in every detail and the conduct and transactions of individuals in respect thereof.

Civil Rights Cases, 109 U. S., 18. The existence of war and the restoration of peace are to be determined by the political department of the Government, and such determination is binding and conclusive upon the courts, and deprives the courts of the power of hearing proof and determining as a question of fact either that war exists or has ceased to exist.

Perkins v. Rogers, 35 Ind., 167. In this case the court said: The war-making power is, by the Constitution, vested in Congress, and the President has no power to declare war or conclude peace, except as he may be empowered by Congress.



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, now come into full force, by virtue of the Constitution, and are to be exerted by the President and Congress. After the declaration of war, every act done in carrying on the war is an act done by virtue of the Constitution, which authorized the war to be commenced. Every measure of Congress, and every executive act performed by the President, 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 determined by the Constitution.

McCormick v. Humphrey, 27 Ind., 154. By the Constitution, Congress alone has the power to declare a national or foreign war. It can not declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is Commander in Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States.

The Brig Amy Warwick, 2 Black (U. S.), 668. It is the exclusive province of Congress to declare war, but the right to repel invasions arises from self-preservation and defense, which is a primary law of nature and constitutes part of the law of nations. It, therefore, becomes the duty of a people, and particularly of the Executive Magistrate, who is at their head, and Commander in Chief of the forces by sea and land, to repel aggressions and invasions.

People v. Smith (U. S. Cir. Ct. 1806), 3 Wheel. Crim. (N. Y.), 100; 27 Fed.

Cas., No. 16342. Letters of marque and reprisal are sometimes issued with a view to obtain redress for some national injury without resort to further hostile measures.

Unless rules are made concerning captures and confiscations, no private citizen can enforce rights of' forfeiture, either with or without judicial assistance. A declaration of war is not an expression of the will of Congress that reprisals may be made.

Brown v. U. S., 8 Cranch, 110. In the absence of an act of Congress there is no right to prize in property captured by vessels of the United States.

While the American colonies were a part of the British Empire the English maritime law, including the law of prize, was the maritime law of this country. From the close of the Revolution down to this time it has continued to be our law, so far as it is adapted to the altered circumstances and condition of the country, and has not been modified by the proper national authorities. In our jurisprudence there are, strictly speaking, no droits of admiralty. The United States have succeeded to the rights of the Crown. No one can have any right or interest in any prize except by their grant or permission. All captures made without their express authority inure ipso facto to their benefit. Whenever a claim is set up its sanction by an act of Congress must be shown. If no such act can be produced the alleged right does not exist. The United States take captured property, not as droits, but strictly and solely jure reipublicæ. (The Siren, 13 Wallace, 392. See also The Hampton, 5 Wallace, 376.)

But as a legitimate means of prosecuting war the property of a belligerent may be seized and confiscated, and disposed of absolutely at the will of the captor.

Miller v. U. S., 11 Wallace, 268.

Tyler v. Defrees, 11 Wallace, 331. The power given by this clause is granted in the largest terms, and without any expressed limitation. By section 2 of the act of March 3, 1863, providing that the Secretary of the Navy or the Secretary of War shall be, and they, or either of them, are hereby authorized to take any captured vessel, any arms or munitions of war, or other material for the use of the Government; and when the same shall have been taken, before being sent in for adjudication, or afterwards, the department for whose use it was taken shall deposit the value of the same in the Treasury of the United States, subject to the order of the court in which prize proceedings shall be taken in the case; and when there is a final decree of distribution in the prize court, or if no proceedings in prize shall be taken, the money shall be credited to the Navy Department, to be distributed according to law," the authority of Congress was not exceeded.

Appropriation of captured property by the War and other departments, 10

Op. Atty. Gen., 519. War gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found. The investigations 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 can not 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.

In Brown v. U. S. (8 Cranch, 122) the court said: 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 extraterritorial. 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 to an independent substantial power, not included in that of declaring war.

And, again, page 125: That the declaration of war has only the effect of 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 enumerated powers which accompany that of declaring war.

The mere declaration of war does not confiscate enemy property or debts due to an enemy, nor does it vest the property or debts in the Government, as to support judicial proceedings for the confiscation of property or debts, without the 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.

Butler v. Butler, 9 Blatchf. (U. S.), 456; 4 Fed. Cas. No. 1903. Enemy property found within the United States on the breaking out of war can not be confiscated without an act of Congress authorizing such confiscation.

Wagner v. Schooner Juanita, Newb. Adm., 352; 28 Fed. Cas. No. 17039.
U. S. v. Stevenson, 3 Ben. (U. S.), 119; 27 Fed. Cas. No. 16396.
U. S. v. 1,756 Shares of Capital Stock, 5 Blatchf. (U. S.), 231; 27 Fed. Cas.

No. 15961. The act of Congress of July 13, 1861, authorizing the President to proclaim and declare “the inhabitants” of certain States “or any section or part thereof,” to be in a state of insurrection against the United States, and thereupon all commercial intercourse, by and between the same and the citizens thereof and the citizens of the rest of the United States, shall cease and be unlawful so long as such condition of hostility shall continue; and all goods, etc., coming from said State or section into the other parts of the United States, and all proceeding to such State or section, by land or water, shall, together with the vessel or vehicle conveying the same, or conveying persons to or from such State or section, be forfeited to the United States, was held to be a lawful valid exercise of legislative power; for the Congress of the United States was not, by the rebellion, deprived of the authority to legislate in this manner with a view to its suppression.

Brown v. Hiatt, 1 Dill (U. S.), 372; 4 Fed. Cas., No. 2011.

The Ned, 1 Blatchf., Prize Cas., 119; 17 Fed. Cas., No. 10078. The act of Congress of July 17, 1862, providing that “all slaves of persons who shall hereafter be engaged in rebellion against the Government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the Army; and all slaves captured from such persons, or deserted by them, and coming under the control of the Government of the United States, and all slaves of such persons found or being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captures of war, and shall be forever free of their servitude and not again held as slaves,” was held to be valid, as a state of war existed.

Bine v. Parker, 63 N. Car., 131. This right of confiscation exists in favor of the United States in respect to its citizens engaged in rebellion against its authority.

The Prize Cases, 2 Black, 635, 673.

The Grapeshot, 9 Wall., 129, 132. As a war measure the slaves of persons in rebellion may be given their freedom.

Slabach v. Cushman, 12 Fla., 472.
Dorris v. Grace, 24 Ark., 326.
Weaver v. Lapsley, 42 Ala., 601.

Hall v. Keese, 31 Texas, 504. When war exists the Government possesses and may exercise all those extreme powers which any sovereignty can wield under the

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