386 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 



" 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 inter- 

 national 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.^^ 



"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 uni- 

 versally 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 i, 1863, as a general confiscation of a par- 

 ticular 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. 



"5 Brown v. U. S., 8 Cranch no (1814). It is doubtful whether inter- 

 national law at present confers a " right of confiscation " even upon the sov- 

 ereign authority. Supra, note 62. 



«' Richardson, Messages, 6: 85, 96, 157; Burgess, Civil War and Re- 

 construction, 2: 117; Rhodes, History of U. S., 4: 70, supra, sec. 47, note 59. 



