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ishment is inflicted."104 Congress cannot extend the meaning of these terms beyond the meaning which they have by the law of nations. In discussing a case of murder of a foreigner by a foreigner, committed on sea on a foreign vessel, the Supreme Court said in United States v. Pirates:105 "Nor is it any objection to this opinion that the law declares murder to be piracy. These are things so essentially different in their nature, that not even the omnipotence of legislature power can confound or identify them. Had Congress, in this instance, declared piracy to be murder, the absurdity would have been felt and acknowledged, yet, with a view to the exercise of jurisdiction, it would have been more defensible than the reverse, for in one case it would restrict the acknowledged scope of its legitimate powers, in the other extend it. If, by calling murder piracy, it might assert a jurisdiction over that offense committed by a foreigner on a foreign vessel, what offense might not be brought within their power by the same device? The most offensive interference with the governments of other nations might be defended on the precedent."

It is not necessary, in order to make a statute valid under this clause, that upon the face of the statute itself the acts be denounced as offenses against the law of nations. It is enough if the statute describes the act, and denounces it with punishment, and that the act in its nature comes within the scope of international obligations.106

When an act of Congress made it an offense to make a revolt on the high seas, but did not define the offense, it was held to be competent for the court to give a judicial definition of it.107

The high seas include all waters not within the territorial control of some particular country. It has been judicially decided that the Great Lakes are high seas.108 Navigable rivers in other countries are not, however, so included.109

104 United States v. Smith, 5 Wheaton, 153, 157.

105 5 Wheaton, 184, 198.

106 United States v. White, 27 Fed. Rep. 203.

107 United States v. Kelly, 11 Wheaton, 417.

108 United States v. Rodgers, 150 U. S. 249.

109 United States v. Wiltberger, 3 Wheaton, 76.

Under this clause Congress is given the power to pass laws for the suppression of the slave trade;110 and for punishing the counterfeiting of the securities or money of foreign countries or the notes of foreign corporations.'

111

The United States may punish crimes committed on the high seas, either on board ships flying the American flag, or on ships held by pirates, or persons not lawfully sailing under the flag of any nation.112

§ 154. Declaration of war. Letters of marque and reprisal.-Clause 11: (The Congress shall have power) "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and waters."

The exclusive power to declare war is vested in Congress, except that the States may engage in war, without the consent of Congress, when actually attacked, or in such imminent danger as wi!! not admit delay. War is "that state in which a nation prosecutes its right by force."113 It is not necessarily begun by a formal declaration of war.114 The power to declare war carries with it the power to pass all laws necessary for the carrying on of war, and to prosecute the war by all means recognized as legitimate by the rules of International Law.115 In cases of war with uncivilized nations a country is not bound by the rules of International Law.

Congress has the power either to make reprisals on enemy property found within the territory of the United States when war is declared, or to order the confiscation of enemy's property, a mere declaration of war, however, does not authorize either reprisals or confiscations.116

Congress shall have the same power, and can resort to the same methods in the case of a civil war as in the case of a war

110 Federal Cases No. 18, 269a. 111 United States v. White, 27 Fed. Rep. 201; United States v. Arjona, 120 U. S. 479, 483.

112 United States v. Holmes, 5 Wheaton, 412, 417.

113 The Prize Cases, 2 Black, 635; Bas v. Tingy, 4 Dallas, 37; Talbot v. Seaman, 1 Cranch, 28.

114 The Prize Cases, 2 Black, 635. 115 Tyler v. Defrees, 11 Wallace, 331; the Prize Cases, 2 Black, 635; Miller v. United States, 11 Wallace, 305; Dooley v. Smith, 13 Wallace, 604; the Legal Tender Cases, 12 Wallace, 457.

116 Brown v. United States, S Cranch, 110, 127.

with a foreign power.117 The power to declare and carry on war carries with it the power to acquire territory by conquest.118 The grant of the powers of issuing letters of marque and reprisal, and of making rules concerning captures on land and water, are unnecessary as they are included in the grant of power contained in the first part of the clause. The same might also be said about some of the powers granted in the succeeding clauses of this same section. Under the Constitution the power to grant letters of marque and reprisal is exclusively in the United States, the power being expressly denied to the States. Under the Articles of Confederation the States had had this power under certain restrictions.119

121

During a war Congress may permit partial intercourse with the enemy,120 Congress may also provide for the distribution of prize money, but independent of statute there is no right to prize in property captured by vessels of the United States. 12 The power to make rules concerning captures on land and water includes captures either on the high seas or in territorial waters. 122

$155. The army.-Clause 12: (Congress shall have power) "To raise and support armies, but no appropriation of money to that use shall be for a longer time than two years.'

follows as a necessary "The Federal power

and, as a necessary

The power to raise and support armies incident from the power to declare war. has a right to declare and prosecute wars, incident, to raise and transport troops."123 Such armies may be raised by draft and any able bodied man may be compelled to serve. Under the twofold power to raise armies and to call forth and organize the militia of the several States, both regular na

117 Tyler v. Defrees, 11 Wallace, 331; the Prize Cases, 2 Black, 635. And See Chapter XII. of this work.

118 Insurance Co. v. 336 Bales of Cotton, 1 Peters, 511.

119 See Articles of Confederation, Article VI.

120 Hamilton v. Dillin, 21 Wallace, 73, 87.

121 The Siren, 13 Wallace, 389,

392.

122 Brown Cranch,

V. United States, 8 110, 153; La Mar V.

Browne, 92 U. S. 187.

123 Crandall v. Nevada, 6 Wa lace, 35.

tional armies and occasional militia forces from the several States may be raised, either by conscription or in other modes. The power to raise them by conscription may at a crisis of extreme exigency be indispensable to national security.124 Congress has the power to enlist minors in the army of the United States without the consent of their parents.125 Congress has full power of legislation in the matter of increase or reduction of the army, and may ratify the action of the President in mustering officers or troops out of service; this power is, however, primarily in Congress and not in the President.126

The limitation of the period of appropriation for the army to two years was the result of the old Anglo Saxon fear of standing armies. In England it was customary to pass annual appropriations for the army, and also annual militia bills for the purpose of preventing the executive from being able to build up a strong standing army independent of the control of the Legislature.127

The power to declare war was not given to Congress to be used for purposes of aggression.128 The United States Government can exercise all the powers in the case of a civil war that it can in a foreign war.129 The control of the army is entirely in the hands of the Federal Government, and the executive or judicial authority of any State will not be allowed to interfere with it in any way.

§ 156. The navy.-Clause 13: (The Congress shall have power) "To provide and maintain a navy." The jealousy against the army prevalent during the 18th century, both in this country and in England, did not extend to the navy, and no restrictions. as to the length of the appropriations for this branch of the mili

124 McCall's Case. Federal Cases, No. I., 669.

125 United States v. Bainbridge, 1 Mason, 71.

120 Street v. United States, 133 U. S. 299, 307.

127 The fact that the Constitution permitted appropriations to be made for the army for so long a period as two years was one of the arguments urged against its

adoption in the cenventions of several of the States.

128 United States v. Castrellein, 2 Black, 355.

120 Prize Cases, 2 Black, 635; the Venice, 2 Wallace, 258; Mrs. Alexander's Cotton, 2 Wallace, 404; Ouachita Cotton, 6 Wallace, 521; Menee v. United States, 8 Wallace, 163. See discussion of this question in Chapter XII.

tary service was inserted in the Constitution. This clause gives to Congress the same general control over the navy that the 12th clause does over the army. Under the liberal interpretation of this clause it has been held that Congress had the power to establish a Naval Academy130 or to authorize the Government to buy or build any number of steam or other ships of war, to arm and otherwise prepare them for war and to dispatch them to any accessible part of the globe.131

$157. The government and regulation of the land and naval forces. Clause 14: (The Congress shall have power) To make rules for the government and regulation of the land and naval forces." This clause is not strictly necessary. It is implied in the three previous clauses and more particularly in the eleventh. Under this clause Congress may provide for the trial and punishment of military and naval offenders.

This power is exclusive in Congress. No State can in any particular, either through its legislative or judicial department, regulate or abridge the right of Congress in this respect.132 Nor has the President any power to promulgate rules for the government of such forces without special authority from Congress.133 The regulation of the dismissal of army officers and of the restoration of dismissed officers is with Congress.134 Under this grant of power it is for Congress to provide for trials by Courts-martial135 and to decide who shall act on such courts-martial.136

§ 158. Calling out the militia.-Clause 15: (The Congress shall have power) "To provide for calling forth the militia to execute the laws of the Union, suppress insurrection and repel invasions." Congress has vested this power to call forth the

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