Captures Clause

The Congress shall have Power To ...make Rules concerning Captures on Land and Water....

Article I, Section 8, Clause 11

Under the Captures Clause, Congress has the power to make rules for the confiscation, disposition, and distribution of captured enemy property. Although nothing in the text of the clause precludes its application to captures of enemy persons, it has never been so applied by either courts or Congress.

The roots of the clause can be traced to Article IX of the Articles of Confederation, which vested in Congress the power "of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the united states shall be divided or appropriated." Read as a unit, this clause suggests that Congress alone has the power to establish rules governing the circumstances under which wartime "captures" will be adjudged lawful "prizes," to which the captors are entitled at least partial title. This construction is supported by the fact that, during the Revolution, captors could not claim lawful title to captured property until after a prize court had granted it.

Under this interpretation, the term captures, as understood by the Framers of the Constitution, includes only enemy property. The term could not include captured enemy soldiers, as persons can neither be "divided" nor "appropriated." This approach is bolstered by the fact that the term capture was understood under international law, as listed in Bouvier's Law Dictionary (1914), as "the taking of property by one belligerent from another or from an offending neutral."

Presidentialists may read the Captures Clause in conjunction with the Marque and Reprisal Clause to conclude that the Captures Clause authorizes Congress to regulate captures by private parties only and not by the armed forces of the United States. Revolutionary practice suggests such a view, as letters of marque and reprisal were frequently issued by the Continental Congress exclusively to privateers "to make Captures of British Vessels and Cargoes," pursuant to rules established by Congress.

Although the executive's power to conduct war necessarily includes the power to seize persons and property on the battlefield, the Supreme Court has construed the Captures Clause to deny the executive constitutional power to seize enemy property off the battlefield. In Brown v. United States (1814), the Court concluded that, by virtue of the Captures Clause, the executive lacks inherent constitutional authority to confiscate property owned by subjects of enemy nations, and must seek congressional authorization in order to do so. Congress has long conferred such power upon the executive by enacting laws such as the Trading with the Enemy Act.

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John Yoo
Professor of Law
University of California-Berkley, Boalt Hall School of Law
James C. Ho
Partner
Gibson, Dunn & Crutcher, LLP