File No. 862.85/82a
The Secretary of State to the Attorney General ( Gregory)
My Dear Mr. Attorney General: Your Department has submitted three questions for the opinion of the law officers of the State Department regarding the seizure and condemnation of the refugee [Page 1247] German merchantmen in United States ports at the outbreak of war. These questions will be considered in the order of their submission.
First. Is there any rule of international law binding on the United States which would require that the merchant ships now in the harbors of the United States belonging to alien enemies be condemned in prize courts rather than by action of Congress?
This question involves the confiscation of enemy private property found within the United States as a belligerent on the outbreak of war. It might be argued that inasmuch as these vessels are subsidized by the German Government and are more or less under its control, they partake of the nature of enemy public property, which is confiscable by the belligerent in whose possession it is found; but I think this would be regarded as a strained interpretation of their character, and I would, therefore, prefer to regard the vessels as privately-owned enemy property. As to the disposition of enemy private property thus situated, there are two views among authorities on international law. According to the one view, there is an obligation that they should be exempt from confiscation except in the exigency of military necessity, public safety, or reprisal. This is the European Continental view.
According to the Anglo-American view, the sovereign possesses the right to require confiscation if this should be found necessary, but leans toward a general policy of exemption. The difference in effect between these two views is not very great. In practice, however, nations as a rule seem to recognize the exemption of private property as a policy which ought to be followed save in exceptional cases. Confiscation in the nature of reprisal is a well-established method of international practice by which one nation obtains redress for injuries inflicted by another nation when other means of satisfaction have failed.
The confiscation of enemy private property within the jurisdiction of the United States upon the outbreak of war has been stated by the Supreme Court of the United States to be contrary to “the modern usage of nations which has become law.” (Brown v. U. S., 8 Cranch 110; U. S. v. Percheman, 7 Peters 51.) In Brown v. U. S. Chief Justice Marshall said—
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 chuse to bring it into operation, the judicial department must give effect to its will.
Oppenheim, the learned British authority on international law, states—
In former times International Law empowered States at the outbreak of war to lay an embargo upon all enemy merchantmen in their harbours in order to confiscate them. …1 As regards enemy merchantmen in the harbours of the belligerents, it became, from the outbreak of the Crimean War in 1854, a usage, if not a custom, that no embargo could be laid on them for the purpose of confiscating them, and that a reasonable time must be granted them to depart unmolested; … (Vol. 2, p. 140; see also “The Chile,” 1914, 31 T.L.R. 3.)
In the United States, therefore, it has been deemed necessary to have Congress specially authorize the confiscation of enemy property. Congress passed confiscatory acts during the War of Independence and the Civil War—the acts of August 6, 1861, July 17, 1862, March 3, 1863, and the Joint Resolution of July 17, 1862. These acts were passed presumably under the power delegated by the Constitution to Congress to make rules concerning “captures on land and water.” (8 Cranch 110; 1 Dallas 69; 5 Blatch. 231; 16 Wall. 483; 96 U. S. 279; 97 U. S. 594.)
It may be said, however, in behalf of prize procedure, that it is a procedure understood and recognized throughout the world in condemnation of enemy property. It is also well understood that a prize court is a municipal court, set up by the sovereign and subject to his will. In the absence, however, of municipal laws controlling the action of a prize court, it is supposed to administer the law of nations, and on this supposition its international standing is based. There are, however, many instances in which prize court decisions have been objected to by one belligerent, re-heard in international arbitrations, and overruled. But, being set up by municipal law and subject to municipal law, it is difficult to perceive why a decision of a prize court should be in principle more highly regarded by foreign countries than any other act of a sovereign in harmony with the rights accorded him by international law, one of which rights is to confiscate enemy property or to requisition it upon payment of just compensation.
It seems to have been the practice of British and American prize courts to regard as prize (strictly so called) only such property as is seized by the naval forces of the belligerents, whether on the high seas, in foreign waters, in home waters, or in their own territory, unless a different rule has been set up by the sovereign. In the United States it seems that a different rule has been established for the consideration of seizures of property on “inland waters” by the following sections of the Revised Statutes: [Page 1249]
- Sec. 5310. No property seized or taken upon any of the inland waters of the United States by the naval forces thereof shall be regarded as maritime prize; but all property so seized or taken shall be promptly delivered to the proper officers of the courts.
- Sec. 5311. The Attorney-General, or the attorney of the United States for any judicial district in which such property may at the time be, may institute the proceedings of condemnation, and in such case they shall be wholly for the benefit of the United States; or any person may file an information with such attorney, in which case the proceedings shall be for the use of such informer and the United States in equal parts.
The only question before a prize court is whether the captured property is good prize or not; that is, whether it should be condemned as hostile property or released as innocent property. If the German ships lying in United States ports should turn out to be partly owned by American citizens or neutral subjects, the interest in the vessels so owned would not ordinarily be condemned, but the vessels would be condemned for the use of the United States subject to any such interest.
It was formerly the custom to condemn a prize for the benefit of the officers and men making the captures. This distinguished the proceeding from that of other forfeitures. This was the practice in the United States up to 1899, when the right of the captors to prize money or bounty was abolished by the act of March 3, 1899 (30 Stats. 1007).
Answering the question specifically, I am of the opinion that there is no rule of international law requiring that the ships in question be condemned in prize courts rather than by any other procedure selected by Congress with opportunity for neutral and American owners to be heard in court. For example, the sentence of a foreign court of admiralty has been recognized by United States courts in the following cases: Williams v. Armroyd (1813), 7 Cranch 423; The Mary (1815), 9 Cranch 126.
In case Congress should decide not to enact laws to confiscate these ships, but should, on the contrary, follow the more moderate custom of requisitioning the vessels as enemy private property upon payment of compensation, I offer the following comments upon the subject of requisition:
It is, I believe, the modern view that enemy private property should be requisitioned when necessary upon the payment of compensation rather than confiscated. This is the rule agreed to by the nations at The Hague in Convention No. 6, 1907, relating to the status of enemy merchant ships at the outbreak of hostilities. The United States, however, did not sign this convention, on the ground, among others, that it did not give complete freedom for vessels of the enemy in port at the outbreak of hostilities to depart. In this connection, [Page 1250] moreover, it should be considered that the German vessels in question are generally so disabled as to render departure impossible, and that they would be immediately seized on the ocean by Allied cruisers if they did depart.
It may be argued that the treaties of 1828, 1799, and 1785 would be violated by requisitioning the German refugee vessels. The only stipulation of these treaties bearing on this point is article 23 of the treaty of 1799, providing that—
If war should arise between the two contracting parties, the merchants of either country then residing in the other shall be allowed to remain nine months to collect their debts and settle their affairs, and may depart freely, carrying off all their effects without molestation or hindrance; and all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers, and fishermen, unarmed and inhabiting unfortified towns, villages, or places, and in general all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into whose power by the events of war they may happen to fall; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price.
(See Rev. Stat. 4068, for the enforcement of treaties of this sort.)
As most of the German vessels were, on April 6, owned by nonresident German corporations, with only operating agents here, only two or three vessels lying in our insular ports being possibly owned by Germans residing there, and as they are not to be taken for the use of the “armed force” of the United States, it would seem that this stipulation of the treaty would, as a practical matter, have little application to vessels in United States ports. I have not exact data, however, as to the resident ownership of these vessels.
I find no case in which, as Commander in Chief, the President has requisitioned property of the enemy within United States territory not in control of armed forces. Many cases of requisitions of goods for the use of American forces have occurred, of course, but these have been within territory occupied by the Army in the Mexican and Civil Wars. In the Mexican and Civil Wars, goods were requisitioned without an act of Congress by order of the President as Commander in Chief, but receipts for the goods taken, or money payments were generally made, though the right was asserted that requisition might be made without compensation. (7 Moore’s “Digest,” 262, et seq.) The Supreme Court of the United States has held in cases coming before it that compensation must be made for taking private property by the armed forces during military occupation. (13 Howard 115; 13 Wallace 623.) The power of the President [Page 1251] to requisition under military occupation is, I take it, different from the right of requisition of goods in the United States for commercial purposes in time of war. There appear to be on the books no statutes giving the President direct authority to requisition enemy property for such purposes, and I am of the opinion that such authority by Congress in the circumstances is necessary.
Second. If there be no such rule requiring condemnation in prize courts, and if the possession and title of the vessels can be taken over to the United States by action of Congress, how would such a proceeding be viewed in the foreign courts, say, of an ally like England or of a neutral country like Norway? Would such foreign courts uphold the action of Congress authorizing the taking over of such ships? In other words, would the foreign courts look to our law and sustain such taking?
By whatever procedure the German vessels in question were condemned or requisitioned in the United States, whether by prize court or other proceedings, there would be no means of preventing the offended owner from instituting in a foreign country libel or similar proceedings to determine his ownership of the vessel should she arrive in that country. In the case of the Italian ship Attualità, requisitioned by the Italian Government and plying between the United States and Italy for the Government, the vessel was libeled in the District Court of the United States by the owners of a Greek steamer to recover damages and losses resulting from a collision between his vessel and the Attualità in the Mediterranean Sea. The court assumed jurisdiction of the case, and upon appeal the upper court affirmed its right to take jurisdiction.1
Assuming that a foreign court can take jurisdiction of the case of a German vessel taken over by the United States, it has been stated that—
The sentence of a foreign court of admiralty, though avowedly made under a decree subversive of the law 01 nations, binds the property on which it acts. This principle was applied to sentences under the Milan decree, which both the Executive and the Congress of the United States had declared to constitute a flagrant violation of the law of nations, the court observing that Congress, while making this declaration in regard to the decree, had not declared that the sentences pronounced under it should be considered as void. (Williams v. Armroyd (1813), 7 Cranch 423.)2
Whether a foreign court would take the same view of a title divested by an act of Congress without admiralty proceedings, I can [Page 1252] not answer, as I have been unable in the time at my disposal to find any cases in which a foreign or United States court has examined the validity of direct seizure and confiscation of vessels by an act of the legislature or a decree of the sovereign.
But the rightfulness of the seizure and confiscation by the law of nations is not settled by a decision of a prize or admiralty court or an act of Congress. The nation aggrieved may prosecute the matter diplomatically and have it reviewed by arbitration.
The defendants say, further, the condemnation cannot be illegal because made by a prize court having jurisdiction, and the decisions of such courts are final and binding. This proposition is of course admitted so far as the res is concerned; the decision of the court, as to that, is undoubtedly final, and vests good title in the purchaser at the sale; not so as to the diplomatic claim, for that claim has its very foundation in the judicial decision, and its validity depends upon the justice of the court’s proceedings and conclusion. It is an elementary doctrine of diplomacy that the citizen must exhaust his remedy in the local courts before he can fall back upon his Government for diplomatic redress; he must then present such a case as will authorize that Government to urge that there has been a failure of justice. The diplomatic claim, therefore, is based not more upon the original wrong upon which the court decided than upon the action and conclusion of the court itself, and, diplomatically speaking, there is no claim until the courts have decided. That decision, then, is not only not final, but, on the contrary, is the beginning, the very corner-stone, of the international controversy. (Gray, Admr., v. United States, 21 Ct. Cls. 340, 402; see also Cushing v. U. S., 22 Ct. Cls. 1; I Moore, “Int. Arb.,” 336/III, id., 3180, 3209, 3210; V, id., 4555.)
What in a particular case would be the result of a foreign court taking jurisdiction can not, of course, be foretold, but it is believed that the foregoing sets forth the principles which should govern the decision of such a court, and upon which the United States would be bound to maintain its seizure and disposition of the ships in question.
Third. These ships, when taken over by the United States, may be used by it in any service, or they may be chartered by it to others for use in ordinary commerce; assuming the proposition to be correct that when a government goes into a business it is generally subject to the same rules that would apply to an individual conducting such a business, would those principles be applied by foreign courts? Would they hold that because the ship is used in commerce then the same could be seized in foreign courts by any alien or neutral claimant and the title thereto be tried out in such court? Would the fact that our Government claimed to own such vessel under the action taken by Congress probably prevent this seizure in a foreign court or make it reasonably sure that on the assertion or claim of ownership by our nation the court would dismiss [Page 1253] the proceeding and restore the vessel to the charterer from the United States?
Judging from decisions of British courts (Vavsseur v. Krupp, 9 Ch. D. 351) and the representations made by the Italian (Attualità case referred to above) and Russian Governments (Johnson Lighterage Co., 231 Fed. 365) in regard to the public property of a foreign government, those countries and possibly other Continental countries of Europe would be inclined to adhere to the rule of exemption of public property from judicial process. The United States courts, however, would seem to limit the exercise of jurisdiction over government-owned property to cases in which the possession of the property by the court could only be assumed without taking it out of the actual official possession of the government (Long v. Tampico, 16 Fed. 491; “The Davis? 10 Wall. 15; Johnson Lighterage Co., 231 Fed. 365). The diplomatic correspondence of the United States in the Attualità case, moreover, was based on the principle that even government-owned ships, if engaged in ordinary commerce, were subject to the rules and regulations of ordinary commercial vessels. In both the Attualità case and the Russian case the court took jurisdiction, but the Governments concerned did not have actual official possession of the vessels.
I believe that it is sound principle that when a government enters into business it should be generally subject to the same rules which would apply to individuals conducting the same business (U. S. v. Planters’ Bank, 9 Wheaton 904; Carolina Dispensary Cos., 199 U. S. 437). But it can not be said that this principle has been generally adopted by foreign nations, and it is possible at the present time that foreign governments would accede to representations of the United States based upon government ownership of the German ships in question. The United States, however, believing that the principle just stated is sound, and having based its correspondence in the Attualità case upon this principle, would be in a difficult position if it made such representations to a foreign government whose courts had assumed to take jurisdiction of a German vessel condemned to the United States.