862.85/61½
The Secretary of State to President Wilson
My Dear Mr. President: In your note of April 8th you asked me whether the requisition of German ships for transportation uses or the seizure of such ships by way of reprisal requires authorization by Congress. In reply, I should say that both requisition and reprisal, in the circumstances, require action by Congress.
Reprisal is a well-established method in international practice by which one nation obtains redress for injuries inflicted by another nation when other means of satisfaction have failed. A reprisal in the nature of seizure of property may amount to, and in this case I assume that it is desired that it should amount to, confiscation of the property in question. The confiscation of enemy private property within the jurisdiction of the United States at or after the outbreak of war has been in several cases held by the Supreme Court of the United States to be contrary to “the modern usage of nations which has become law.” As this usage of nations has thus been declared to be the law in the United States, it is necessary to have Congress authorize the confiscation. That such confiscatory acts by Congress are necessary is shown by the history of the United States in the War of Independence and the Civil War, when special acts of confiscation were passed—the Acts of August 6, 1861,5 July 17, 1862,6 the Joint [Page 4] Resolution of same date,7 and the Act of March 3, 1863.8 Moreover, the Constitution delegates to the Congress the power to make rules concerning “captures on land and water”, and power to grant letters of marque and reprisal. It was the opinion of Jefferson, Clay, and Gallatin that an act of Congress was necessary to vest in the President authority for making reprisals.
As to requisitions of private property, I find no case in which, as commander-in-chief, the President has requisitioned property of the enemy within United States territory. Many cases of requisitions of goods for the use of American forces have occurred, of course, but these have been within territory occupied by the army in the Mexican and Civil Wars. The right of requisition under military occupation is, I take it, different from the right of requisition of goods in the United States for commercial purposes in time of war. In the Mexican and Civil Wars, goods were requisitioned without an Act of Congress by order of the President as commander-in-chief, but receipts for the goods taken or money payments were generally made, though the right was asserted that requisition might be made without compensation. The Supreme Court of the United States has held in cases coming before it that compensation must be made for taking private property by the armed forces during military occupation. There appear to be on the books no statutes giving the President direct authority to requisition enemy property, and I am of the opinion that such authority by Congress in the circumstances is necessary.
I have turned over to the War Trade Committee the task of drafting an appropriate act to cover the seizure of German and Austrian ships, by way of reprisal, ship for ship for the American ships sunk, and for purposes of requisitioning the remaining ships.
Faithfully yours,