Nor is negligence the product of a consensus about the meaning of the catch-all clause. Although this may suggest a narrow reading of the seizure clause (at least as an exclusive grant of power to Congress), it is difficult to draw this conclusion because Congress ratified seizures, the Court relied heavily on international law, and the president is respond to an armed attack (rather than initiating the conflict itself).
THE EIGHTEENTH CENTURY
6 "Captor" is also frequent, spanning the two preceding uses to refer to someone who takes either property or prisoners. Grotius also used the more general term "price" to refer to people, as well as both immovable and movable property.65.
International Law
85 Lee then uses "capture" more than forty pages later in a discussion of when movable property becomes the property of the kidnapper. The use of the word 'conquer' increased in international discourse, both as a noun to describe the act of taking possession or possession itself, but also – this use was less common – more broadly to describe the act of the taking of people, cities, or other property.
British and Colonial Practice
British and colonial practice, outside the prize laws, sometimes used the term "capture" as a noun to refer to the act of seizing a vessel or goods," or (as in the prize laws) to property itself.9 Both usages occurred. in the context of property to be taken to a prize court. See Report of the Law Officers of the Crown, in Ernest Satow, The Silesian Loan and Frederick the Great Clarendon 1915). Anthony Stokes calls this report one of "the most useful" books to a lawyer in the Colonies, in questions of catches at sea in time of war." Stokes, Constitution of the British Colonies at.
Control of Captures by Crown and Parliament
See also Pares, Colonial Blockade and Neutral Rights at 92 (cited in note 95) (discussing similar language in the 1739 declaration and explaining that it violated treaties with the Netherlands and France). Parliament occasionally controlled what goods were to be seized, even by the public forces, even in a declared war against Spain." as evidence of "government interference" in price cases).
Rules
It can refer, as is generally accepted, to seizures made by land or naval forces on land or on water. As we have seen, "catches" overwhelmingly refers to seizures made by maritime vessels, and "on land and water" can refer to such seizures, including those made on land. Although this kind of capture on land was not particularly common, neither was the use of the term "capture" in relation to the taking of property by land forces.
Broad or Narrow?
Once again, “seized” is used here by the Continental Congress as the language of the authorization itself, and not simply to refer to the taking of the ship or property itself. See also Ford and Hunt, eds, 21 Journals of the Continental Congress, 1153 (December 4, 1781) (quoted in note An ordinance, which fixes what is taken on the water, shall be lawful. In accordance with the powers vested in the Confederation are delegated in cases of conquest on water."). Worthington Chauncey Ford and Gaillard Hunt, eds, 22 Journals of the Continental Congress January 8, 1782) (GPO 1914) (providing rules relating to the proceeds of the capture of a enemy ship "by any armed ship belonging to the United States, and duly authorized to make recordings").
Prize Money and Courts
The key question is how much of this power the Constitution's Capture Clause gives Congress. British admiralty courts and the Privy Council had previously exercised appellate review over vice-admiralty courts, although many details of how this worked remain unclear." In Active's case, for example, a protracted conflict arose over the power of Congress to review jury verdict on appeal." Congress debated the case several times and eventually passed a resolution stating that "the lawfulness of all captures on the high seas must be determined by the law of nations," that the power of war and peace was vested in Congress, and that Congress should be able to avoid violations of treaties or the law of nations that might result from a jury verdict.'93 After much debate, the Continental Congress formed a court of appeals in 1780 and then passed "an ordinance concerning captures," which consolidated and superseded all previous legislation on the subject".
Captures and Prisoners
Laurens' capture." John Dodge published a pamphlet about his capture entitled "A Narrative of the Capture and Treatment of John Dodge by the English at Detroit." In Revolutionary War diplomatic correspondence, "captured" and "captured taken" are used more than 150 times, with about 70 percent of the references being to properties or ships.
The Articles of Confederation
Congress, as we have seen, had the exclusive power to determine the captures that could be made by public and private vessels, and this is the language used to identify that power." The Articles of Confederation use different language to describe the specific power to determine, " in what manner prizes received by the land or naval forces in the service of the United States shall be divided or appropriated This is part of what the traditional prize laws have done—determine how prizes awarded by public vessels shall be divided between the government and by the various members of the crew.On establishing rules for deciding in all cases what captures on land or water shall be lawful-In what manner prizes received by the land or naval forces in the service of the United States shall be distributed or appropriated in time of peace.However however, this interpretation of the Articles of Confederation raises one potential problem: under what authority did the Continental Congress control the taking and treatment of prisoners.
Conclusion
- THE CONSTITUTION
With respect to prisoners held by the public forces, the authority could be derived from making "rules for the government and regulation of the said land and naval forces, and directing the operations thereof." The essence of the constitution was to increase the articles of confederation, so the distribution of power according to the articles is obviously not in itself decisive for the division of power in the constitution. However, the significance of the language used in the constitution and in In the case of capture, experience and the language of the Articles of Confederation shed important light on the meaning of the text of the constitution.
The Federal Convention
- To provide tribunals and punishment for mere offences against the law of nations
- To declare the law of piracy, felonies and captures on the high seas, and captures on land
- To appoint tribunals, inferior to the supreme judiciary
On June 12, 1787, the Convention apparently agreed to drop the language "all captures by an enemy" from the Virginia Plan; this language had to do with the power of the judiciary. States in Congress, according to the Articles of Confederation now existing." Variant Texts of the Plan Presented by William Patterson - Text A, The Avalon Project (1787), online at http://avalon.law.yale.edu/18th-century/ patexta.asp (visited November 6, 2009) 2 million variant texts of the plan presented by Alexander Hamilton to the Federal Convention - Text A, Project Avalon (1787), online at http'/avalon.law.yale.edu/ Century 18th/hamtexta.asp (visited Nov. 6, 2009) (describing Hamilton's proposal for the functions and procedures of legislatures).
Change from the Articles of Confederation?
From the perspective of the Capture clause—which, before the Style Committee got around to it, could best be read to include authorization—the best understanding of this move is that the Declaration of War and Letters of Marque and Reprisal clauses also included powers related to the initiation of war, and they three powers were united in the final version for this reason. In the Federalist Papers, Madison referred to capture that he had under the Federal Convention to illustrate the scope of the federal government's power under the statute!29. 247 See generally Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787 (J.B. Lippincott 1891).
The First Years of the Republic
Perhaps more surprisingly, when the individual constitutional powers of the President and Congress were discussed, little was said about the seizure power itself. For political or constitutional reasons, Adams sought congressional approval for most aspects of the response to French aggression—arming merchant ships, authorizing the seizure of French property by public vessels, and retaliating against French prisoners.255 The February legislation is titled, "An Act Concerning French Nationals Who Were or they might be captured and brought to the United States" gave the president the power to "exchange or send" French prisoners aboard captured vessels. 16 To the extent that such legislation could be understood as a function of the power to capture, it still indicates a narrow authority over captives that applies only to those on board vessels taken as prizes.
Letters of Marque and Reprisal and the Offenses Clause
Some scholars have argued that the Marking and Retaliation Clause covers only the licensing of private vessels, without understanding that the Seizures Clause confers substantive power to determine what chattels may be seized by private and public vessels. The Constitution unequivocally includes both war and peacetime depredations and reprisals.” 278 The articles of confederation distinguished between war and peacetime depredations and reprisals.
Declare War
For those with a broad view of the War Clause, the task has been to explain whether (and if so, why) the Captures Clause is redundant with the War Clause. But it is also very clear that there is significant overlap between the Captures Clause and the Declaration of War Clause. A careful analysis of the Captures Clause thus makes an important contribution to the ongoing debate over the Declaration of War Clause.
Rules for the Government and Regulation of the Armed Forces One starting point for understanding this grant of power to Con-
Secondly, it answers the argument that the clauses are therefore redundant, because the conquest force also had a procedural side and significance in war prosecutions, which would not necessarily have been part of the declaration of war. Finally, for the same reason, this interpretation of the Captures Clause undermines the argument that the Declare War Clause should not be read as including all measures other than war, because this reading would make it redundant when combined with the Captures and Marque and Reprisal Clauses. . Rules for Government and the Regulation of the Armed Forces One starting point for understanding this grant of power to Con-.
The Commander-in-Chief Power
Or perhaps these congressional acts of the late 1790s—even a decade after the ratification of the Constitution—were already a departure from the original understanding of the Constitution, facilitated by the political weakness of President Adams.3".
Congressional Supremacy, War, and Foreign Affairs
The original meaning of the catch clause does not emerge from the historical record as clearly as one might hope. Moreover, until the proceedings of the Continental Congress during the Revolutionary War, the word "capture" was not used in direct connection with such phrases as "land and water" or. This power is a function of the Captures Clause, however, not the Marque and Reprisal Clauses.
