"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.65

"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.

66

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.

66 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.

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." 68 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.69 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

...

"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. 3115cc, d.

69 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.

PROC. AMER. PHIL. SOC., VOL. LX, Z, MARCH 14, 1922.

passed authorizing the President to embargo arms and munitions bound to American countries in a condition of domestic violence."1 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

72

"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 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

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.

73 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.

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. Similarly the XVIII Amendment has provided for the prohibition of the import or export of alcoholic beverages.

77

76

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. But Congress has 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." The power of Congress to pass such acts has been sustained, in part under the commerce clauses0 and in part

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.

80 Head Money Cases, 112 U. S. 580.

as resulting from numerous powers in foreign relations which together constituted the usual powers of "sovereign and independent states." 1 These laws have delegated wide powers of enforcement, often with a minimum of judicial review, to executive officers but this delegation has been sustained.82 The alien act of June 25, 1798, provided: 83

"That it shall be lawful for the President of the United States at any time during the continuance of this act to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States within such time as shall be expressed in such order.” Hardly less broad is the act of October 16, 1918, providing that:

"Aliens who are anarchists, . . . who are members of or affiliated with any organization that entertains a belief in, teaches or advocates the overthrow by force or violence of the government of the United States or of all forms of law, or that entertains or teaches disbelief in or opposition to all organized governments . . . shall be excluded from the United States," and if such alien is found in the United States, he "shall upon the warrant of the Secretary of Labor be taken into custody and deported."

During the World War many alien enemies were interned by order of the President under authority of the alien enemy act of July 6, 1798, as amended to include women in April, 1918.8* 221. Power to Employ l'arious Methods of Coercion.

Of the seven types of measures discussed, the President can, in pursuance of his constitutional duties, authorize diplomatic pressure, or display of force on national territory or on the high seas without express authority of Congress. He has, in pursuance of such duties, authorized the occupation of foreign territory and the capture and destruction of foreign military forces without express authority, though generally Congress has ratified his act by later resolution. It would seem that the President in such cases ought to await an authorizing resolution unless an immediate necessity demands promptness. Finally authority to seize or destroy private

81 Chinese Exclusion Cases, 130 U. S. 581; Fong Yue Ting v. U. S., 149 U. S. 398.

82 U. S. v. Ju Toy, 198 U. S. 253.

83 1 Stat. 576.

84 Supra, note 77.