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extraordinary war powers exercised and held constitutional were:
(1) The emancipation of the slaves, within all the territory held by the insurgents. This was sustained as a war measure. See Texas v. White, 7 Wall., 700; 2 Story on Const., 5th ed., p. 111, n.
(2) The establishment of courts by military authority within insurgent districts occupied during the civil war by the Union army. The Grapeshot, 9 Wall., 129; Mechanics’ B’k v. Un. B’k, 22 Wall., 676; Coleman v. Tennessee, 97 U. S., 509.
(3) The appointment of provisional governors over States in revolt until restored to their proper practical relation to the Union. Texas v. White, 7 Wall., 730.
The war power to acquire territory by conquest, as an incident of the war power, will be considered on page 269, under the power of the United States over territories.
As a necessary incident to the power to declare war, the government has a right to raise and transport troops through and over the territory of a State or territory of the Union. Crandall v. Nevada, 6 Wall., 35, 44.
The right of confiscation exists as fully in case of civil war as in foreign war; and the confiscation acts of Aug. 6, 1861, and July 7, 1862, are constitutional, as an exercise of war powers. Miller v. United States, 11 Wall., 268; Tyler v. Defrees, id., 331.
The government, as incident to the war power, can permit a limited commercial intercourse with the enemy and prescribe conditions therefor. Hamilton v. Dillin, 21 Wall., 73.
In a civil war the United States have all the powers of a sovereign and of the most favored belligerent. Their officers may capture property or seize private property, in obedience to the order of commanding general; and are not liable to private action for acting under such orders. Lamar v. Browne, 92 U. S., 187. · The President's proclamation of Sept. 7, 1867, did not operate as a dismissal of legal proceedings under the confiscation acts, or provide for the restoration of the property seized thereunder, nor divest the title of bona fide purchasers. Semmes v. United States, 91 U. S., 21.
LETTERS OF MARQUE AND REPRISAL.
To grant letters of marque and reprisal.—These words permit the grant of public authority to persons, who are not in the regular service of the country, to exercise the public power of warring upon and capturing vessels of the enemy upon the high seas, giving rise to the habit of what is known as privateering. The practice has in former times been much pursued of giving a commission called “letters of marque and reprisal” to some private owner of a vessel, who then armed it and sailed the seas, capturing such vessels of the enemy as
were lawful prize of war. These letters make acts lawful which otherwise would be piracy. The apology for this usage is (1) that it gives employment to seamen thrown out of employment by the war; (2) that it strengthens the naval power; (3) that it trains seamen to venturesomeness and furnishes good material for recruits for the navy. At the Convention of Paris in 1856 many nations agreed to the proposition that "privateering is abolished,” and that is now the general rule. The United States refused to concur in this, as we then had so small a navy and so much sea coast. But in the war with Spain the Executive, fully in accord with the spirit of the age, refused to grant letters to privateers.
On this subject Story says: “This granting of letters of marque and reprisal is often a measure of peace to prevent a resort to war. Thus, individuals of a nation sometimes suffer from the depredations of foreign potentates, and yet it may not be deemed either expedient or necessary to redress such grievances by a general declaration of war. Under such circumstances the law of nations authorizes the sovereign of the injured individual to grant him this mode of redress.” The words mean, letters of marque, that is, permission to pass the frontier, and “reprisal” to take, to make himself good of the property of the people of the nation which has plundered him. In time of war, and on the seas, letters of marque and reprisal are a general license to capture enemy's goods wherever found. But now it is generally agreed that neutral ships make goods neutral, unless contraband of war, that is, goods such as munitions of war or supplies intended for the use of the army.
Under this clause and the succeeding one Congress passes laws, and the Prize Act, when in force, permits the President to grant letters of marque and reprisal and to revoke and annul the same.
To make rules concerning captures on land and water.—Under this power Congress passes prize acts, regulating the capture of enemy's property and provides prize courts which determine whether the captured property is lawful prize of war. If so, it is sold and the money divided, part going to the officers and crew, the law fixing the proportion to each. The decisions of the Supreme Court mostly expound the prize laws or law of nations, rather than the text of the Constitution.
THE POWER TO RAISE ARMIES.
The Congress shall have power, *
"To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years."
Congress is the sole judge as to the size of the armies to be raised. The power to raise armies is a necessary
incident to the power to declare war. Under the articles of Confederation the Congress could only make requisitions on the States to furnish so many men clothed, armed and equipped; and the States often failed to respond. Hence, the power “to raise and support” armies. The people were very fearful of conferring so dangerous a power on the general government; but it was decided in the convention that by limiting the appropriation to two years the people could choose Representatives to cut off the supplies if they thought the army was too large or used for improper purposes.
THE POWER TO PROVIDE A NAVY.
The Congress shall have power, *
1. “That a government, which possesses the broad power of war which ‘may provide and maintain a navy,' which 'may make rules for the government and regulation of the land and naval forces,' has power to punish an offense committed by a marine, on board a ship of war, wherever that ship may lie, is a proposition never to be questioned in this Court." Ch. J. Marshall in United States v. Bevan, 3 Wheat., 336.
2. In the exercise of this power, Congress provided for the punishment of desertion and of other crimes not specified in the articles which should be punished ac