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 exist ence 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

war shall be begun. The terms of such a declaration fix the exact date of the beginning of the war so far as concerns matters of municipal law, and is binding on the courts of the State issuing it. From the viewpoint, however, of other nations, such a declaration is not conclusive, the beginning of the war being one of fact to be interpreted in the light of the general principles of international law.24

§ 715. The Prosecution of War.

The constitutional power given to the United States to declare and wage war, whether foreign or civil, carries with it the authority to use all means calculated to weaken the enemy and to bring the struggle to a successful conclusion. When dealing with the enemy all acts that are calculated to advance this end are legal. Indeed, the President in the exercise simply of his authority as commander-in-chief of the army and navy, may, unless prohibited by congressional statute, commit or authorize acts not warranted by commonly received principles of international law; and Congress may by law authorize measures which the courts must recognize as valid even though they provide penalties not supported by the general usage of nations in the conduct of war. Thus during the Civil War in certain cases the provision by congressional statute for the confiscation of certain enemy property or land was enforced, though such confiscation was not in accordance with the general usage of foreign States.

Even in dealing with its own loyal subjects, the power to wage war enables the government to override in many particulars private rights which in time of peace are inviolable.25

The power to wage war carries with it the authority not only to bring it to a full conclusion, but, after the cessation of active military operations, to take measures to provide against its renewal. As the court says in Stewart v. Kahn:26 "The measures

to be taken in carrying on war and to suppress insurrection, are

24 Upon this point see the very thoughtful paper of T. S. Woolsey entitled "The Beginnings of War," published in Vol. I, p. 54, of the Proceedings of the American Political Science Association.

25 For the limitations upon the war powers in this respect, see post. 26 11 Wall. 493; 20 L. ed. 176.

not defined. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution. In the latter case the power is not limited to victories in the field and to the dispersion of the insurgent forces. It carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress."

§ 716. The Organization and Disciplining of the Militia.

As has been seen, the "organizing, arming and disciplining of the militia," and the prescribing of the discipline for training them is expressly placed within the control of Congress. The actual training, however, of the militia, according to the discipline thus to be supplied by Congress, is kept within the hands of the state authorities. And, furthermore, to them is given in general the appointment of militia officers, and the entire government of the militia forces except when they have been called into the service of the General Government.

The present federal law passed under the constitutional authority for "organizing, arming and disciplining the militia and for governing such part of them as may be employed in the service of the United States" is that of May 27, 1908, amending the act of January 21, 1903. This law provides:

"That the militia shall consist of every able-bodied male citizen [with certain exceptions later enumerated] of the respective States and Territories and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention. to become a citizen, who is more than eighteen and less than fortyfive years of age, and shall be divided into two classes: the Organized Militia, to be known as the National Guard of the State, Territory or District of Columbia, or by such other designations as may be given them by the laws of the respective States. or Territories, and the remainder to be known as the Reserve Militia." 27 Section 4 of the act provides: "That whenever the

27 A proviso makes the act applicable only to the militia organized as a land force.

United States is invaded, or in danger of invasion from any foreign nation, or of rebellion against the authority of the government of the United States, or the President is unable, with the regular forces at his command, to execute the laws of the Union, it shall be lawful for the President to call forth such number of the militia of the States or of the Territories or of the District of Columbia as he may deem necessary to repel such invasion, suppress such rebellion, or to enable him to execute such laws, and to issue his orders for that purpose, through the governor of the respective State or Territory, or through the commanding general of the militia of the District of Columbia, from which State, Territory or District such troops may be called, to such officers of the militia as he may think proper."

The act further provides that the militia when called into the federal service shall serve during the term of their enlistment, that the "organized militia" shall be called out by the President in advance of any volunteer force which it may be determined to raise, and that these troops may be employed "either within or without the territory of the United States." Punishment for refusal or neglect to obey a call is provided, and in general, provision made that the organization, armament and discipline governing the militia shall be the same as that prescribed for the regular volunteer forces of the United States.

The Secretary of War is directed to issue to the organized militia the necessary standard service arms and accoutrements. Instruction of the organized militia, practice marches and encampments, etc., are also provided for.

§ 717. The Militia as an Arm of the Federal Government.

The Constitution enumerates three purposes for aid in the effectuation of which the United States militia forces may be mandatorily called upon by the General Government. These are (1) to execute the laws of the Union, (2) to suppress insurrections, (3) to repel invasions.

The suppression of insurrections has been held to include the

waging of civil war for the putting down of rebellion,28 and the repelling of invasions to include the providing against an attempted or threatened invasion.29 The President may, when calling upon the militia, apply to the governors of the States to give the necessary orders, or may issue his orders directly to the commanding officers of the militia.30 When called into the federal service, the militia comes under the same complete federal control as the regular national forces, and of course subject to the rules and articles of war.31

In Martin v. Mott the doctrine was declared, which has not since been questioned, that the President is the sole and exclusive judge as to whether an exigency has arisen calling for a use of the militia by the federal authorities.

§ 718. The Use of the Militia and Federal Troops to Suppress Domestic Disorder.

From the foregoing it is seen that in all cases in which the integrity or existence of the National Government is attacked or threatened, or a resistance offered to the execution of its laws too great to be overcome by the ordinary agencies of government, the aid of the federal troops or of the organized militia of the States may be at once called upon. In cases, however, of domestic violence within a State, directed against its laws and government, the federal arm may extend help only when called upon by the state authorities.

In 1894 at the time of the great railroad strike of that year, the employment in Illinois of federal troops, there having been no request for their use by the authorities of that State, gave rise to a vehement protest on the part of the governor of the State. It would appear, however, that the action of the federal authorities in that instance was fully justified, the federal troops

28 Texas v. White, 7 Wall. 700; 19 L. ed. 227; Tyler v. Defrees, 11 Wall. 331; 20 L. ed. 161.

29 Martin v. Mott, 12 Wheat. 19; 6 L. ed. 537.

30 Houston v. Moore, 5 Wh. 1; 5 L. ed. 19.

31 Houston v. Moore, 5 Wh. 1; 5 L. ed. 19.

32 12 Wh. 19; 6 L. ed. 537.