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554.

Argument for Plaintiffs in Error in Nos. 394, 395.

in the court which appointed him. And the situation created by this amendment is not essentially different from that existing under our tax laws. Clinkenbeard v. United States, 21 Wall. 65.

Under any view the trustees are entitled to their day in court before they can be required to deliver the property from their possession to the Custodian.

Mr. Emory R. Buckner, with whom Mr. Gerard C. Henderson and Mr. H. H. Nordlinger were on the brief, for plaintiffs in error in Nos. 394 and 395:

The court may in this proceeding inquire whether the property was held for the benefit of an enemy, within the meaning of §7 (c) of the Trading with the Enemy Act.

Enemy property may be of three kinds: (1) Property subject to capture at sea, (2) property subject to capture on land, and (3) property which cannot be captured at all, but which may with proper legislative authority be confiscated by appropriate legal proceedings. As for the occasion and effect of capture at sea and the necessity for subsequent judicial proceedings fully protecting the owner, see: Lamar v. Browne, 92 U. S. 187; Manila Prize Cases, 188 U. S. 254, 278; Jecker v. Montgomery, 13 How. 498, 516; Kent Comm., 13th ed., vol. 1, pp. 101, 102; The Flad Oyen, 1 C. Rob. 135; Sawyer v Maine Ins. Co., 12 Massachusetts, 291, 295; The Siren, Fed. Cas. No. 12,911; Bradstreet v. Neptune Ins. Co., 3 Sumner, 600; Moore's Digest, vol. 7, p. 630.

As to property on land, a sharp distinction is drawn between property subject to capture and property subject to confiscation. While the Constitution gives to Congress power to "make rules concerning captures on land and water," it is of course clear that without any legislation the military forces in the field have the power to capture any property in the hands of the hostile forces, or used or intended to be used for hostile purposes. Kirk v. Lynd,

Argument for Plaintiffs in Error in Nos. 394, 395. 254 U. S.

106 U. S. 315, 317. There are only two requisites: (1) That the property be used or intended for hostile purposes, or peculiarly adapted to hostile use, and (2) that it be captured in the course of military activities. See Mrs. Alexander's Cotton, 2 Wall. 404; Planters' Bank v. Union Bank, 16 Wall. 483. The capture, "flagrante bello," of property used for hostile purposes has nothing to do with the ownership and involves no question upon which the courts can act. It rests upon military necessity. Hence, it is not surprising that with respect to movables the act of capture, immediately and without judicial proceedings, vests title in the government.

It follows as a corollary that no one, not even a loyal citizen or neutral, has redress in the courts for an unauthorized capture, unless Congress, as a matter of grace, grants a remedy. To permit suit against the military officers would hamper their conduct of military operations. Lamar v. Browne, supra. The government cannot be sued without its consent, and if there is no consent there is merely a wrong without a remedy.

In the Civil War, Congress granted a remedy under specific limitations. Abandoned Property Act of March 12, 1863, 12 Stat. 820; United States v. Anderson, 9 Wall. 56, 65; United States v. Padelford, 9 Wall. 531; Confiscation Act of August 6, 1861, 12 Stat. 319; Kirk v. Lynd, 106 U. S. 315; Miller v. United States, 11 Wall. 268.

In the case of property not taken flagrante bello, or by special legislative authority because used for hostile purposes, but property outside the field of hostilities, there is the right to confiscation because of its enemy ownership, under proper legislation. Brown v. United States, 8 Cranch, 109. But the Act of July 12, 1862, 12 Stat. 589, passed for this purpose, was sharply distinguished in the legal and constitutional theory upon which it was based, from either of the two acts previously considered. The Confiscation Act conferred on the Government a right

554.

Argument for Plaintiffs in Error in Nos. 394, 395.

not previously existing. The Abandoned Property Act recognized an existing right in the Government, and conferred a remedy on certain persons injured thereby. "The one is penal, the other remedial; the one claims a right, the other concedes a privilege." United States v. Anderson, supra. The Abandoned Property Act covered only property in enemy territory, seized flagrante bello by the military authorities. United States v. Padelford, supra; Planters' Bank v. Union Bank, supra. The Confiscation Act covered only property in loyal States and did not authorize military seizure. Planters' Bank v. Union Bank, supra. The Abandoned Property Act recognized that title to hostile property captured by the military vested forthwith in the United States. The Confiscation Act recognized that property not captured by the military, and not affected by hostile use, could not be forfeited to the United States without legal proceedings. United States v. Anderson, supra, p. 66.

Equally significant is the distinction drawn by this court between the Confiscation Act of 1861 and the Confiscation Act of 1862. Kirk v. Lynd, supra, 319; Bigelow v. Forrest, 9 Wall. 339, 350; United States v. Anderson, supra, 67. When a military commander finds property used for hostile purposes he must act at once. He may seize the property and send it behind the lines; or he may destroy it on the spot. But where the only purpose is to cripple the enemy financially by confiscating his subjects' property, there is plenty of time for deliberate adjudication. There is no conceivable reason (aside from the natural impatience of executive officers with any judicial restraint upon their powers) why disputed questions of ownership should not be adjudicated, in an orderly way, before the seizure is complete. Custody of the property, throughout the proceedings, is in the court. Any decision may properly relate back to the date of capture. Every interest of the Government is fairly protected. And there

Argument for Plaintiffs in Error in Nos. 394, 395. 254 U. S.

are preserved to the owners of property the inestimable benefits of due process of law.

The Trading with the Enemy Act should be examined in the light of these decisions.

The act as amended gives the Custodian more than a mere possessory right to enemy property seized by him. Immediately upon seizure, indeed upon mere requirement that the property be transferred, the Custodian acquires the right to sell, for any reason satisfactory to himself, and to deal with the property "as though he were the absolute owner thereof." Such a right is not reconcilable with any theory of provisional custody. It is not like the Confiscation Act of 1862. The provisional seizure authorized in that act was open to collateral attack, and the determination upon which it was made was not binding on the courts. Day v. Micou, 18 Wall. 156, 161.

Nor is there the slightest analogy between the right of seizure conferred on the Custodian and the rights of temporary possession conferred upon a naval commander by capture. The naval commander, like the military officer, must act at once, upon appearances; the Custodian is under no such necessity. Moreover, the naval commander's right to possession is qualified by an absolute duty (which may yield only to imperious military necessity), to submit his rights to a court at the earliest possible opportunity. If he does not, he may lose the ship, even though the original capture was rightful. The Custodian is under no such duty of vindicating his right to possession after the property has been seized. The absence of such a safeguard argues strongly against the intention of Congress to confer upon the Custodian a right to take possession free from review by the courts. The right in the claimant to institute a suit under § 9 is of slight value in comparison.

The Custodian's determination, therefore, cannot be conclusive. United States v. Anderson, supra; Jecker v.

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Argument for Plaintiffs in Error in Nos. 394, 395.

Montgomery, supra. There is a generic difference between executive decisions made in the course of administration, which incidentally affect personal or property rights, and decisions made in proceedings whose only object is the confiscation of property because of the nationality or conduct of the owner. Lawton v. Steele, 152 U. S. 133, 140; Rockwell v. Nearing, 35 N. Y. 302; Dunn v. Burleigh, 62 Maine, 24; Lowry v. Rainwater, 70 Missouri, 152. And the Custodian, being authorized to seize only enemy property, exceeds his jurisdiction, and his decision in any event is reviewable by the courts, if the property is in truth non-enemy. See Burfenning v. Chicago &c. Ry. Co., 163 U. S. 321, 323.

Cases under the Confiscation Act of 1862 afford a parallel so close as to be decisive upon this point. Bigelow v. Forrest, 9 Wall. 339, 351; Day v. Micou, 18 Wall. 156, 161, 162; Conrad v. Waples, 96 U. S. 279; Burbank v. Conrad, 96 U. S. 291; Waples v. United States, 110 U. S. 630; Avegno v. Schmidt, 113 U. S. 293; Shields v. Schiff, 124 U. S. 351. Furthermore, the administrative decision can be conclusive only upon a question of fact. American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 109, 110; Gegiow v. Uhl, 239 U. S. 3.

Having invoked the jurisdiction of the court, libelant must make out a case according to law. [Citing Clinkenbeard v. United States, 21 Wall. 65, and many other cases.]

The property libeled is not enemy property. Legal title to it is vested in American trustees, for the benefit of American creditors and policyholders. It is therefore not subject to seizure under the Trading with the Enemy Act.

The constitutional basis of the act, as well as the manifest absurdity and gross injustice of any other construction, make it clear that, as a matter of substantive law, the act was intended to vest in the Custodian no more than the interest of the enemy, and this is demonstrated by its legislative history.

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