manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against the former sovereign, the world acknowledges them as belligerents, and the contest as war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign state; while the sovereign party treats them as insurgents and rebels, who owe allegiance, and who should be punished with death for their treason." "As a civil war is never publicly proclaimed, eo nomine, against insurgents, its actual existence is a fact in our domestic history, which the court is bound to notice and to know."

2

§ 452. Again: "If a war be made by invasion of a foreign nation, the President is not only authorized, but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or states organized in rebellion, it is none the less a war, although the declaration of it be unilateral. Lord Stowell observes: It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only, is not a mere challenge, to be accepted or refused at the pleasure of the other.'' "It is not the less a civil war with belligerent parties in hostile array, because it may be called an insurrection by one side, and the insurgents considered as rebels and traitors. It is not necessary that the independence of the revolted province or state be acknowledged, in order to constitute it a party belligerent in a war, according to the law of nations."

§ 453. In respect to the powers of the executive, he proceeds: "The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them, could change the fact." "The law of nations contains no such

1 2 Black's R. 667.

8 1 Dodson's Adm. R. 247.

5 Ibid. 669.

2 Ibid. 668.

4 2 Black's R. 669.

6 Ibid. 670.

anomalous doctrine as that which this court are now, for the first time, desired to pronounce, to wit, That insurgents who have risen in rebellion against their sovereign, expelled her courts, established a revolutionary government, and commenced hostilities, are not enemies because they are traitors; and a war levied on the government by traitors, in order to dismember and destroy it, is not a war because it is an insurrection. Whether the President, in fulfilling his duties in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions, as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this court must be governed by the decisions and acts of the political department of the government to which this power was intrusted. He must determine what degree of force the crisis demands. The proclamation of blockade is itself official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.'

II. The Power to grant Letters of Marque and Reprisal.

§ 454. I need not stop to comment upon this clause. It includes the power to provide for the commission of privateers to cruise during a state of perfect war; and of private armed vessels to make reprisals upon the commerce of an unfriendly nation, during a condition of imperfect war. The whole subject of privateering and reprisals belongs to the international law.

III. The Power to make Rules concerning Captures on Land and Water.

§ 455. The "captures" here spoken of, are the things taken by the armed forces of the government, and not the very act itself of taking. The word is used in both senses. We speak of the capture of a town, district of territory, ship, fort, army; and thereby imply the fact of their seizure. The clause cannot admit of this construction; otherwise a very large part of the

disposition and management of the land and naval forces would be in the hands of Congress; and the "Commander-in-Chief" would be an empty title, with little or no power except to enforce the mandates of the legislature. The policy of the Constitution is very different. It was felt that active hostilities, under the control of a large deliberative body, would be feebly carried on, with uniform disastrous results. All history teaches this truth, and shows that the army and navy must be wielded by a single will, must be instruments in one hand. The Constitution has therefore clothed the legislature with power to originate a war; to furnish the requisite supplies of money and materials; to authorize the raising of men; and to dispose of the results. All this is a complete check upon the Executive; for Congress may, by refusing to grant supplies or raise forces, drive the President to conclude a peace, or inaugurate a different policy in the conduct of actual hostilities. But all direct management of warlike operations, all planning and organizing of campaigns, all establishing of blockades, all direction of marches, sieges, battles, and the like, are as much beyond the jurisdiction of the legislature, as they are beyond that of any assemblage of private citizens. The only possible authority for Congress to pass measures in respect to the actual conduct of hostilities, is found in the last paragraph of Section VIII. Article I., which gives them power "to make all laws which shall be necessary and proper for carrying into execution all powers vested by this Constitution in the government of the United States, or in any department or officer thereof." But these measures must be supplementary to, and in aid of, the separate and independent functions of the President as commander-in-chief; they cannot interfere with, much less limit, his discretion in the exercise of those functions.

§ 456. Congress may, therefore, make rules concerning the disposition of all things taken, seized, captured by the national forces of every description. And this includes a vast array, both in number and magnitude, of special objects to which the legislative power may be directed. Under the clause in question, Congress can pass statutes providing for the disposition

of enemies' or neutral ships and goods taken at sea, while violating belligerent rights, the entire code of prize regulations ; for the disposition of public and private property of the enemy taken on land; for the disposition of the persons of enemies taken prisoners; and, doubtless, for the disposition of enemies' territory conquered and held by a victorious army, except so far as this power may be controlled by the higher function of treaty-making, held by the President and Senate.

§ 457. The same capacity exists in a civil war, while the hostilities are actually raging; although the Constitution forbids private property of citizens to be taken for public use without just compensation; and provides that the citizen shall not be deprived of life, liberty, or property without due process of law; and thus prohibits legislative confiscations, and all other summary proceedings of a like character. Indeed, there is something exquisitely absurd in the supposition that a civil, any more than a public, war can be waged under the protection of the Bill of Rights. This point was definitively settled in the Prize Cases,1 just cited, with reference to the private property of a resident within the insurgent territory, taken at sea; and I see no possible difference between that case and the case of such property taken on land during the prosecution of the

war.

§ 458. Mr. Justice Grier, in answering the argument which opposed the treatment of the Southern citizen's vessel and goods as enemies' property, and which urged that the ordinances of secession being null and void, the Southern people were still citizens of the United States, and as such entitled to the immunities and privileges established by the Bill of Rights, says rather pithily: "This argument rests on the assumption of two propositions, each of which is without foundation. It assumes that where a civil war exists, the party belligerent claiming to be sovereign, cannot, for some unknown reason, exercise the rights of belligerents, although the revolutionary party may. Being sovereign he can exercise only sovereign rights over the other party. The insurgent may be killed on the battle-field or by the executioner; his property on land may be confiscated 1 2 Black's R. 635.

2 Ibid. 672.

by the municipal law; but the commerce on the ocean, which supplies the rebels with means to support the war, cannot be made the subject of capture by the laws of war, because it is unconstitutional!!!" He then proceeds to rebut these as

sumptions and to repel the argument.

In fact, those who maintain the views opposed to this case, are inevitably driven to the position, that under the Constitution of the United States, a civil war, however great, is no war, but only an aggravated riot; and the armies and navies used in suppressing the disturbance, are only a somewhat exceptional posse comitatus, called out to aid the sheriff in his civil duty of dispersing the unlawful assemblages, and arresting the offenders.

§ 459. It is well known that Congress, during the late civil war, acted under the construction of their powers which I have stated and advocated; and passed many statutes for the disposition of property seized on land by the armies, in particular of cotton and slaves, selling the one and liberating the other. They also provided for the confiscation of enemies' property by civil proceedings.

How far measures of confiscation, after the hostilities have ended, are lawful, is an entirely different question; its solution depends upon considerations which have no connection with the military powers of Congress.

Second. The Powers which relate to the Raising, Maintaining. Equipping, and Governing the regular Land and Naval Forces, the Army and Navy proper.

I. The Power to Raise and Support the Forces.

§ 460. Congress has power "to raise and support armies," "to provide and maintain a navy," but no appropriation for the army shall be for a longer term than two years. It will be noticed that the latter restriction does not apply to the navy. The army here spoken of is the regular standing army, in contradistinction to the militia, and to volunteer organizations throughout the country.

1 The marks of emphasis are not mine.