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25 2 The Supreme Court on Private Property and War Where the laws of war apply, the ordinary civil and criminal laws are swept aside, much as generals Thomas Jesup and Zachary Taylor swept aside local laws on fugitive slaves to ensure that their Seminole captives were treated as prisoners of war. Peacetime law is not to be disregarded in every wartime situation, however. The application of the laws of war focuses primarily on relations between enemies, not persons on the same side. Two nineteenth-century decisions of the U.S. Supreme Court illustrate this distinction. United States v. Brown1 arose out of the War of 1812 with England. Immediately before the war, several London merchants had hired the American ship Emulous to take 550 tons of pine lumber from Savannah , Georgia, to Plymouth, England. On April 18, 1812, the Emulous sailed from Savannah to her home port at New Bedford, Massachusetts, where the lumber was unloaded while the ship underwent repairs. After Congress declared war on England, the owner of the Emulous, John Delano, seized the lumber and induced the U.S. attorney for Massachusetts to file suit on behalf of himself and of the United States, asking the court to declare the lumber forfeited to the United States as enemy property. (Presumably, Delano would then claim a suitable reward for having patriotically seized his own customers’ property, thus reinforcing the stereotype of the sharp-dealing Yankee trader.) Armitz Brown, who had purchased the British merchants’ rights in the lumber, opposed Delano’s suit, arguing that the most modern authorities on the law of war opposed confiscating the property of enemy nationals that happened to be in a country’s territory at the time its government declared war. At that time, Supreme Court justices presided over lower Federal 26 Act of Justice courts when the higher tribunal was not in session. At the trial of this case, Joseph Story upheld the seizure of the pine logs as a legitimate war measure. By declaring war on Great Britain, he reasoned, Congress had given the president all the powers necessary to win the war.These powers were defined by the law of nations, which allowed any government at war to confiscate the private property of enemy citizens. Brown appealed Story’s decision to the Supreme Court. There, Chief Justice John Marshall made it clear that he and the other justices agreed with Justice Story that the law of war allowed the seizure and forfeiture of any private property owned by persons living under the control of the enemy government. “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.”2 The “humane and wise policy of modern times” to which the chief justice referred had been reflected in the provisions of many European treaties dealing with the problems faced by foreign merchants stranded with their goods in enemy territory at the outbreak of a war. By a strict application of the law of nations as expounded by Chief Justice Marshall , an enemy merchant’s goods could be seized and confiscated as soon as a war broke out, even though his sovereign and the ruler of the place where the goods were located had been at peace when he imported them. In the eighteenth and early nineteenth centuries, it was common for treaties between European powers to include clauses allowing merchants in this situation a certain period of time, such as six months, after the outbreak of war to sell or export their goods and return to their home country. In 1798, the U.S. Congress had addressed this issue as part of a statute dealing with enemy aliens in general. After authorizing the apprehension and detention of enemy aliens during a declared war, the act went on to provide “that aliens resident within the United States . . . shall be allowed, for the recovery, disposal and removal of their goods and effects, and for their departure, the full time which is, or shall be stipulated by any treaty” between their government and the United States. If there was no such treaty, then “the President of the United States may ascertain and declare such reasonable time as...

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