of the armies of the Union were not subject during the war to the laws of the enemy or amenable to his tribunals for offenses committed by them. They were answerable only to their own government, and only by its laws as enforced by its armies could they be punished."

§ 713. Powers of the Commander-in-Chief of the Army and Navy.

The constitutional commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the service of the United States, is the President." Through, or under, his orders, therefore, all military operations in times of peace, as well as of war, are conducted. He has within his control the disposition of troops, the direction of vessels of war and the planning and execution of campaigns. With Congress, however, lies the authority to lay down the rules governing the organization and maintenance of the military forces, the determination of their number, the fixing of the manmer in which they shall be armed and equipped, the establishment of forts, hospitals, arsenals, etc., and, of course, the voting of appropriations for all military purposes.1

17 Art. II, Sec. II, Cl. 1.

18

18 The distinction of congressional from presidential powers in military matters is drawn by the Supreme Court in Ex parte Milligan, 4 Wall. 2; 18 L. ed. 281, in the following words:

66

Congress has the power not. only to raise and support and govern armies, but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions.

The power to make the necessary laws is in Congress, the power to execute in the President. Both powers imply many subordinate and auxiliary pow-Each includes all authority essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the Presi

ers.

With respect to many matters of detail Congress has delegated to the President and to his executive subordinates the establishment of administrative orders for the government of the land and naval forces which it might constitutionally itself provide, but which in fact it is either impossible or unwise for it to attempt to do. All orders of the President, or of the Secretary of War issued under his authority whether given by virtue of his constitutional office as commander-in-chief or of his statutory powere have the full force of law. 19 But in all cases these orders must, if issued by virtue of authority congressionally given, pursue the terms of the granting statute; and if issued by virtue of his constitutional authority, be in accordance with the generally accepted principles of international law and custom. Where this is not done, they will not justify the acts of subordinates acting under them.20

§ 714. Declaration of War.

To Congress is expressly granted by the Constitution the power to declare war. By war is meant an armed conflict of a public nature, the parties to which are recognized as belligerents and entitled to all the rights and subject to all the obligations which international law recognizes and imposes.

But war may come into existence as a fact without a formal declaration, and in the Prize Cases21 the Supreme Court has held that this existence of war as a fact may be recognized by the President, in advance of Congressional declaration, and that he may thereupon take action, as, for example, the establishment of dent. Both are servants of the people, whose will is expressed in the fundamental law. Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of officials, either soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature."

19 United States v. Freeman, 3 How. 556; 11 L. ed. 724; Smith v. Whitney, 116 U. S. 167; 6 Sup. Ct. Rep. 570; 29 L. ed. 601.

20 Little v. Barreme, 2 Cr. 170; 2 L. ed. 243.

21 2 Black, 635; 17 L. ed. 459.

a blockade, which in time of peace he would not be constitutionally empowered to institute.

After defining war in a public sense and asserting that a civil strife may become a public war by reason of numbers, powers and organization of the persons who originate and carry it on, the court say: "Whether the President, in fulfilling his duties as commander-in-chief, 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 the court must be governed by the decisions and acts of the political department of the government to which this power was entrusted. 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." 22

The first establishment of the blockade by the President was on April 19, 1861. July 13 of the same year Congress by act formally declared war to exist, and by retroaction validated the acts of the President prior to that date.

In the case of The Protector23 the court held that the war had begun at the times of the President's two proclamations of blockade, April 19 and 27, 1861, but that it had closed at different dates in the different States. Thus in some of the States it was declared not to have ended until August 20, 1866, or about a year after active military operations had come to an end. The court in The Proctor case said: "The question in the present case is, when did the rebellion begin and end? In other words, what space of time must be considered as excepted from the operation of the Statute of Limitations by the war of rebellion?

"Acts of hostility by the insurgents occurred at periods so various, and of such different degrees of importance, and in parts

22 In a dissenting opinion Justice Nelson, while granting that a civil strife might become a public war, with the parties thereto belligerents, declared that this change of status could not be brought about save by the formal action of Congress, the body which by the Constitution is authorized to declare war.

93 12 Wall. 700; 20 L. ed. 463.

of the country so remote from each other, both at the commencement and the close of the late civil war, that it would be difficult, if not impossible, to say on what precise day it began or terminated. It is necessary, therefore, to refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken.

"The proclamation of intended blockade by the President may, therefore, be assumed as marking the first of these dates, and the proclamation that the war had closed as marking the second. But the war did not begin or close at the same time in all the States. There were two proclamations of intended blockade; the first of the 19th of April, 1861, embracing the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas; the second of the 27th of April, 1861, embracing the States of Virginia and North Carolina; and there were two proclamations declaring that the war had closed: one issued on the 2d of April, 1866, embracing the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, Tennessee, Alabama, Louisiana, and Arkansas; and the other issued on the 20th of August, 1866, embracing the State of Texas."

To the writer it seems a very questionable construction of the Constitution to hold that in the case of a civil struggle the President has the power, upon his own judgment, to affix to it the character of a public war, and thus to bring into existence all the many legal conditions which that status imports. That he has full power to use all the forces of the nation to put down resistance to the execution of the federal laws there can be no question, but it would seem that the explicit declaration of the Constitution that to Congress belongs the power to declare war necessarily excludes from the executive sphere of authority the power to pronounce that public war exists. The writer is, therefore, disposed to quote with approval the following language of Justice Nelson employed in his dissenting opinion in the Prize Cases. When public war exists, he says: "The people of the two countries

become immediately the enemies of each other all intercourse, commercial or otherwise, between them unlawful - all contracts existing at the commencement of the war suspended, and all made during its existence utterly void. The insurance of enemy's property, the drawing of bills of exchange or purchase on the enemies' country, the remission of bills or money to it are illegal and void. Existing partnerships between citizens or subjects of the two countries are dissolved and, in fine, interdiction of trade and intercourse, direct or indirect, is absolute and complete by the mere force and effect of war itself. All the property of the people of the two countries on land or sea are subject to capture and confiscation by the adverse party as enemies' property, with certain qualifications as it respects property on land (Brown v. United States, 8 Cr. 110; 3 L. ed. 504). All treaties between the belligerent parties are annulled. The ports of the respective countries may be blockaded, and letters of marque and reprisal granted as rights of war, and the law of prizes as defined by the law of nations comes into full and complete operation, resulting from maritime captures, jure belli. War also effects a change in the mutual relations of all States or countries, not directly, as in the case of belligerents, but immediately and indirectly, though they have no part in the contest but remain neutral. This great and pervading change in the existing condition of a country, and in the relations of all her citizens or subjects, external and internal, from a state of peace, is the immediate effect and result of a state of war; and hence the same code which has annexed to the existence of a war all these disturbing consequences has declared that the right of making war belongs exclusively to the supreme or sovereign power of the State. This power in all civilized nations is regulated by the fundamental laws or municipal constitution of the country. By our Constitution, the power is lodged in Congress."

That no war can exist between the United States and a foreign State, except by the declaration of Congress there has never been any doubt. This declaration may, however, be, as in the case of the Mexican War, that a state of war exists, or one declaring that