Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

In Brown v. United States,1 Chief Justice John Marshall addressed the legal position of enemy property during wartime. He held that the mere declaration of war by Congress does not effect a confiscation of enemy property situated within the territorial jurisdiction of the United States, but that Congress could subject such property to confiscation by further action.2 As an exercise of the war power, such confiscation is not subject to the restrictions of the Fifth and Sixth Amendments.3 Since such confiscation is unrelated to the personal guilt of the property owner, it is immaterial whether the property belongs to an alien, a neutral, or even to a citizen.4 Confiscation operates as an instrument of coercion, which, by depriving an enemy of his or her property, impairs the ability of such enemy to oppose the confiscating government while providing the confiscating government the means for conducting the war.5

Footnotes

1

12 U.S. (8 Cr.) 110, 126 (1814). See also Conrad v. Waples, 96 U.S. 279, 284 (1878) ( “[U]ntil some provision was made by law, the courts of the United States could not decree a confiscation of his property, and direct its sale.” ).

2

Brown, 12 U.S. at 125 ( “The constitution of the United States was framed at a time when this rule, introduced by commerce in favor of moderation and humanity, was received throughout the civilized world. In expounding that constitution, a construction ought not lightly to be admitted which would give to a declaration of war an effect in this country it does not possess elsewhere, and which would fetter that exercise of entire discretion respecting enemy property, which may enable the government to apply to the enemy the rule that he applies to us.” ). See also Cent. Union Tr. Co. of New York v. Garvan, 254 U.S. 554, 566 (1921) ( “There can be no doubt that Congress has power to provide for an immediate seizure in war times of property supposed to belong to the enemy . . . .” ); United States v. Chem. Found., 272 U.S. 1, 11 (1926) ( “Congress was untrammeled and free to authorize the seizure, use or appropriation of such properties without any compensation to the owners.” ); Silesian Am. Corp. v. Clark, 332 U.S. 469, 475 (1947) ( “There is no doubt but that under the war power, as heretofore interpreted by this Court, the United States, acting under a statute, may vest in itself the property of a national of an enemy nation. Unquestionably to wage war successfully, the United States may confiscate enemy property.” ).

3

Miller v. United States, 78 U.S. (11 Wall.) 268, 304–305 (1871); Stoehr v. Wallace, 255 U.S. 239, 245 (1921) ( “That Congress in time of war may authorize and provide for the seizure and sequestration through executive channels of property believed to be enemy-owned, if adequate provision be made for a return in case of mistake, is not debatable.” ). But see Cities Serv. Co. v. McGrath, 342 U.S. 330, 335 (1952) (holding that confiscation of an instrument of debt could, in the event of a foreign court judgment effecting effecting a double recovery against them, give rise to a claim against the United States for a ‘taking’ of their property within the meaning of the Fifth Amendment).

4

Miller, 78 U.S. at 305 (citing The Venus, 12 U.S. (8 Cranch) 253 (1814)); Juragua Iron Co. v. United States, 212 U.S. 297, 306–07 (1909) ( “A neutral owning property within the enemy’s lines holds it as enemy property, subject to the laws of war; and, if it is hostile property, subject to capture.” ) (quoting Young v. United States, 97 U.S. 39, 60 (1877)).

5

Miller, 78 U.S. at 306; Kirk v. Lynd, 106 U.S. (16 Otto) 315, 316, (1882) ( “All private property used, or intended to be used, in aid of an insurrection, with the knowledge or consent of the owner, is made the lawful subject of capture and judicial condemnation; and this, not to punish the owner for any crime, but to weaken the insurrection.” ).