rebels the insurgents who have been recognized as belligerents by foreign powers, and it would, therefore, seem that, in the United States, from the constitutional viewpoint, it should lie with the war-declaring power, that is, with Congress, to determine when the civil struggle should be recognized as a war. In advance of such recognition the executive would have the authority to use the entire force of the nation in the enforcement of its laws, as, in the case of an invasion, or other attack by a foreign power, but, it would seem, he should not be given the power to do more than this and by his own ipse dixit declare that a public war exists. The court in the Prize Cases say: "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." This also is quite true. As between the United States and a State thus attacking it, and as concerns neutral States, a war may thus be brought into existence without a declaration. But from this it does not necessarily follow that as concerns our citizens the legal rights and responsibilities attendant upon a state of war may be brought into force without the action of the constitutional lawdeclaring power. However, the court in the Prize Cases say: "Whether the President in fulfilling his duties, as Commanderin-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 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." 48

48 In the Prize Cases four justices, including Chief Justice Taney, dissented, the ground of this dissent being in a considerable measure that indicated by the author.

The powers of Congress with reference to the prosecution of a war, and some of the legal incidents to a state of war are discussed in later chapters.

49

§ 403. Letters of Marque and Reprisal and Captures on Land and Water.

Congress is authorized by the Constitution to grant letters of marque and reprisal and to make rules concerning captures on land and water.

It has been held that letters of marque may be granted to privateers to make captures within the territorial waters of the United States as well as upon the high seas.'

50

Similarly Congress may make rules concerning captures within the United States as well as upon the high seas or upon foreign soil.51

§ 404. Other Military Powers.

The express powers given to Congress with reference to the raising and supporting of armies, the organizing, arming, disciplining, and calling forth the militia to execute the laws of the Union, and, generally, the powers of Congress with reference to the prosecution of a war are considered elsewhere.52

49 See Chapters LXI, LXII.

50 The Experiment, 8 Wh. 261; 5 L. ed. 612.

51 Brown v. United States, 8 Cr. 110; 3 L. ed. 504.

52 Chapters LXI, LXII.

CHAPTER XLV.

PROHIBITIONS ON CONGRESS.

§ 405. Absolute and Qualified Prohibitions.

In the chapters which have gone before, the powers of Congress have been considered. In connection therewith have been discussed the express and implied limitations which restrain Congress in the exercise of those powers, as, for example, with reference to the subject of taxation, the express limitation that all taxes, other than direct, shall be uniform throughout the United States, and the implied limitation, that the salaries of state officials, or the evidences of state indebtedness shall not be federally taxed.

In the present chapter we shall have to deal with the general limitations laid by the Constitution upon Congress, either by way of the absolute denial to Congress of a power, or by way of provision that the power shall be exercised only under certain specified circumstances.

It would seem that certain of these limitations thus expressly imposed operate as an absolute denial to Congress of a legislative power with reference to the subjects specified, without regard to time or place. Others of these limitations, as was held in the Insular Cases, serve to restrain the legislative powers of Congress only when dealing with the States and incorporated territories.'

1" There is a clear distinction between such prohibitions as go to the very root of the power of Congress to act at all, irrespective of time and place, and such as are operative only throughout the United States' or among the several States. Thus, when the Constitution declares that no bill of attainder or ex post facto law shall be passed,' and that no title of nobility shall be granted by the United States' it goes to the competency of Congress to pass a bill of that description. Perhaps the same remark may be applied to the First Amendment that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech; or of the press; or the right of the people to peacefully assemble and to petition the government for a redress of grievances.' We do not wish, however, to be understood as expressing an opinion how far the bill of rights contained in the first eight Amendments is of general and how far

§ 406. Importation of Slaves.

The provision of the Constitution that "the migration or importation of such persons as any of the States now existing shall think proper and admit shall not be prohibited by the Congress prior to the year 1808" has, of course, become obsolete.

With respect to the immigration of persons into the United States, the authority of the United States is exclusive as regards its commerce power, or its control of foreign relations. The States may not levy a tax on persons entering the United States, such a tax not being relieved from the constitutional objection that it is an interference with commerce by describing it in its title as in aid of an inspection law which authorizes immigrants to be inspected with reference to their being criminals, paupers, lunatics, or persons liable to become a public charge. Inspection laws and the words "imports" and "exports," the Supreme Court has declared have reference to property and not to persons."

of local application. Upon the other hand, when the Constitution declares that all duties shall be uniform throughout the United States' it becomes necessary to inquire whether there be any territory over which Congress has jurisdiction which is not a part of the United States,' by which term we understand the States whose people united to form the Constitution, and such as have since been admitted to the Union upon an equality with them. . . . We suggest, without intending to decide, that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights which are peculiar to our own system of jurisprudence. Of the former class are the rights to one's own religious opinions and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's cwn conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice, to due process of law, and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments; and to such other immunities as are indispensable to a free government. Of the latter class are the rights to citizenship, suffrage (Minor v. Happersett, 21 Wall. 162; 22 L. ed. 627), and to the particular methods of procedure pointed out in the Constitution, which are peculiar to Anglo-Saxon jurisprudence, and some of which have already been held by the States to be unnecessary to the proper protection of individuals.” Justice Brown in Downes v. Bidwell, 182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088.

2 New York v. Compagnie Générale Transatlantique, 107 U. S. 59; 2 Sup. Ct. Rep. 87; 27 L. ed. 383.

§ 407. Suspension of Habeas Corpus.

The provision that the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it, is considered in a later chapter dealing with Martial Law.3

§ 408. Bills of Attainder.

Clause 3 of Section IX of Article I provides that "No bill of attainder shall be passed."

This clause has given rise to an inconsiderable number of judicial determinations. The principal case in definition of a bill of attainder is that of Cummings v. Missouri, in which the court held unconstitutional the test oath of loyalty imposed by the Constitution of Missouri as a condition precedent to holding any state office of trust or profit, or practising the profession of the law or ministry. The court declared: "The disabilities created by the Constitution of Missouri must be regarded as penalties penalties they constitute punishment." The oath, the opinion asserts, enacted, not from any notion that the several acts designated indicated unfitness for the callings, but because it was thought that the several acts deserved punishment, and that for many of them there was no way to inflict punishment except by depriving the parties who had committed them of some of the rights and privileges of the citizen."

-

was

"A bill of attainder is a legislative act, which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body in addition to its legitimate functions, exercises the powers and office of judge, it assumes, in the language of the text-books, judicial magistracy; 3 Chapter LXII.

44 Wall. 277; 18 L. ed. 356.