7009. PRIZES, Restitution.—[further continued].
Can prizes and the proceeds
of them, taken after the date of the
treaty [of peace] with France be restored by
the Executive, or need an act of the Legislature?
The Constitution has authorized the
ordinary Legislature alone to declare war
against any foreign nation. If they may enact
a perfect, they may a qualified war, and appropriate
the proceeds of it. In this state of
things, they may modify the acts of war, and
appropriate the proceeds of it. The act authorizing
the capture of French armed vessels, and
dividing and appropriating their proceeds, was
of this kind. The Constitution has given to the
President and Senate alone the power (with
the consent of the foreign nation) of enacting
peace. Their treaty for this purpose is an
absolute repeal of the declaration of war, and
of all laws authorizing or modifying war measures.
The treaty with France had this effect.
From the moment it was signed all the acts
legalizing war measures ceased ipso facto; and
all subsequent captures became unlawful.
Property wrongfully taken from a friend on the
high sea is not thereby transferred to the
captor. In whatever hands it is found, it remains
the property of those from whom it was
taken; and any person possessed of it, private
or public, has a right to restore it. If it comes
to the hands of the Executive, they may restore
it. If into those of the Legislature (as by formal
payment into the Treasury), they may restore
it. Whoever, private or public, undertakes
to restore it, takes on themselves the risk
of proving that the goods were taken without
authority of law, and consequently that the
captor had no right to them. The Executive,
charged with our exterior relations, seems
bound, if satisfied of the fact, to do right to the
foreign nation, and take on itself the risk of
justification.—
To James Madison.
Ford ed., viii, 73.
(W.
July. 1801)
