Article 1, Section 8, Clause 1 — Prizes Of War And Congresss War Powers

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Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

The power of Congress with respect to prizes is plenary; no one can have any interest in prizes captured except by permission of Congress.[1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/prizes-of-war-and-congresss-war-powers#fn1art1 " The Siren, 80 U.S. (13 Wall.) 389, 393 (1871). ") Nevertheless, since international law informs United States law, the Court will apply international law norms so long as such international law norms have not been modified by treaty or by legislative or executive action.[2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/prizes-of-war-and-congresss-war-powers#fn2art1 " The Paquete Habana, 175 U.S. 677, 700, 711 (1900). ") Thus, during the Civil War, the Court found that the Confiscation Act of 1861[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/prizes-of-war-and-congresss-war-powers#fn3art1 " Act of Aug. 6, 1861, ch. 60, 12 Stat. 319. ") and the Supplementary Act of 1863,[4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/prizes-of-war-and-congresss-war-powers#fn4art1 " Act of Mar. 3, 1863, ch. 90, 12 Stat. 762. ") which, in authorizing the condemnation of vessels, made provision for the protection of interests of loyal citizens, merely created a municipal forfeiture and did not override or displace the law of prize.[5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/prizes-of-war-and-congresss-war-powers#fn5art1 " The Hampton, 72 U.S. (5 Wall.) 372, 376 (1867). ") The Court decided, therefore, that when a vessel was liable to condemnation under either law, the government was at liberty to proceed under the most stringent rules of international law, with the result that the citizen would be deprived of the benefit of the protective provisions of the statute.[6](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/prizes-of-war-and-congresss-war-powers#fn6art1 " Id. ") Similarly, when Cuban ports were blockaded during the Spanish-American War, the Court held that the rule of international law exempting unarmed fishing vessels from capture applied in the absence of any treaty provision, or other public act of the government in relation to the subject.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/prizes-of-war-and-congresss-war-powers#fn7art1 " The Paquete Habana, 175 U.S. at 711. ")

Footnotes

1

The Siren, 80 U.S. (13 Wall.) 389 , 393 (1871).

2

The Paquete Habana, 175 U.S. 677 , 700, 711 (1900).

3

Act of Aug. 6, 1861, ch. 60, 12 Stat. 319 .

4

Act of Mar. 3, 1863, ch. 90, 12 Stat. 762 .

5

The Hampton, 72 U.S. (5 Wall.) 372 , 376 (1867).

6

Id.

7

The Paquete Habana, 175 U.S. at 711.