Omaha daily bee., 1919-01-29
The Constitution During the
War and AfterWGrd.
By Henry Wollman, in the Annalist.
PARI III-LoncIusion.


Is there any way to continue the national
food administration, so that it can regulate the
distribution consumption, and price OF food
stuffs? Could the coal administration, or any
part of il be lawfully continued in times Of
peace? / do not see how ii can be done. Even
if the federal government had the power, / am
sure that the people of this republic would not
permit any such control to be exercised over
their business affairs and movements.
Unless one has watched it very carefully he
would be surprised to see what the federal gov
eminent has been able to regulate and stop, I'M
der the interstate commerce clause OF the con-
stituton. I imagine that Alexander Hamilton,
if he could get out of his grave in Trinity
Church cemetery, at the head of Wall street,
might be not little shocked to see the federal
government, to the practical exclusion of the
states and municipalities Furnishing people for
vending impure food The interstate commerce
provision of the constitution is a marvellous
thing when an umbrella is needed for certain
federal legislation The courts, at some future
time, might think it broad enough to let some
department in Washington tell us what we can
eat and what we can not eat that has been
shipped from one state to another state;
whether we can use pure wheat Hour or must
use mixed flour, how much we must pay or not
pay for coal mined in Pennsylvania and shipped
here or whether we must on certain days, abb
stain from using coal mined in other states.
hope not and believe not, but who can tell!
The question is now often agitated, Can the
United States absolutely confscate the property
Of alien enemies in this country? | do not
mean impound it and hold it or its proceeds for
the owner until the war is over, but keep it for
all time or use it in paying indemnity to be ex-
acted from the government of the owner. A
government at war with another government,
unless prevented by an ante-bellum treaty, has
the strict legal right to retain as its own the
property of an alien enemy within its territory,
hi f1ndRFO n
adverse to that.
Chief Justice Marshall, Americas greatest
jurist, in Brown against United States,
Cranch no. in deciding a case growing out OF
the war of 1872 between the United States and
Great Britain speaking for the United States
supreme court, said:
"The modern rule then, would seem to be
that tangible property belong to an enemy and
found in the country at the commencement of
war, ought not to be Immediately conf1scated;
and in almost every commercial treaty an arti-
Gle is inserted STIMULATING for the right to with
draw such property.
"The constitution of the United States was
framed at time when this rule, introduced by
commerce in favor of moderation and humanity,
was received throughout the civilized world.
ut is urged that, in executing the laws of
war, the executive may seize and the courts
condemn all property, which. according to the
modern laws of nations, is subject to confsca-
ton although it might require an act of the
legislature to justify the condemnation of that
property which, according to modern usage,
ought not to be confiscated.
"The rule, like other precepts of morality,
of humanity, and even of wisdom, is addressed
to the judgment of the sovereign and although
it cannot be disregarded by him without ohio
guy. yet it may be disregarded."
The United States supreme court, within
the last two months, rendered a unanimous
opinion, which says in effect to every court in
this country that our courts must guard with
the utmost care the rights of alien enemies
having property and interests in this country,
which, by reason of their absence in the enemy
territory, they are not here to protect
In Watts, Watts & Co. against Unione Aus
triaca di Nayigazone, etc, an Austrian corpor-
alton, advance Sheets, Lawyers Edition, No
vember Is 1879 the United States supreme
court said:
"The respondent, although an alien enemy,
is, of course entitled to defend before a judg-
ment should be entered. 1t is now represented
by counsel. But intercourse is prohibited by
law between subjects of Austria-Hungary out
side the United States and persons in the
United States. We cannot say that for the
proper conduct of the defense consultation be-
tween client and counsel and intercourse be-
tween their respective countries may not be es
sential even at this stage. The war precludes
this.
Under these circumstances, we are of opin-
ion that the decree disnissing the libel should
be set aside and the case remanded to the dis
trict court for further proceedings but that no
action should be taken there Except such, if
any, as may be required to preserve the security
and the rights of the parties in statu quo)
until by reason of the restoration of peace be-
tween the United States and Austro-Hungary,
or otherwise, it may become possible for the
respondent to present its defense adequately"
The courts, during the war, did what it was
imperatively necessary that they should do, they
sustained all the laws and war measures that
were brought before them. 1t was maxim
older than our constitution, that in the midst
of the strife of arms the laws are silent But
now that the war is over and no danger is star
examine, with their usual care, deliberation, aud
mpartiality, all questions growing out Of the