What are offenses against the law of nations? 192-124.

217-223.

397; Waring v. Clark, 5 How. 453, 462; Pyrodus v. Howard, 7 Pet. 342, 324; Howard v. Ingersoll, 13 How. 421, 424; Schooner Harriet, 1 Story's R. 259 Jones v. Root, 6 Mass. 435; The case of Waring v. Clarke, 5 How. 451-504, exhausts the whole learning on the subject. 13 How. 421-424; Angel on Tide-waters, ch. 3, p. 53; Id. ch. 1, pp. 15-34.

115. "OFFENSES AGAINST THE LAW OF NATIONS."-Many of the offenses against the law of nations, for which a man may, by the laws of war, lose his life, his liberty, or his property, are not crimes. It is an offense against the laws of nations and of war to break a lawful blockade, to hold communication or intercourse with the enemy, to act as spy (is an offense against the laws of war, and the punishment for which, in all ages, has been death); to violate a flag of truce, to unite with banditti, jayhawkers, guerillas, or any other unauthorized marauders. And yet these are not crimes. Some of the offenses against the laws of war are crimes, aud Are all offen some not. Because they are crimes, they do not cease to be ses crimes? offenses against those laws; nor because they are not crimes or misdemeanors do they fail to be offenses against the laws of war. Murder is a crime, and the murderer, as such, must be proceeded against in the form and manner prescribed in the Constitution; in committing the murder an offense may also have been committed against the laws of war. For that offense he must answer to the laws of war, and the tribunals legalized by that law.

252-255.

255.

Define the law of nations.

Can Con

the laws of nations?

There is, then, an apparent but no real conflict in the constitutional provisions. Offenses against the laws of war must be dealt with and punished under the Constitution as the laws of war, they being a part of the law of nations, direct; crimes must be dealt with and punished as the Constitution, and laws made in pursuance thereof, may direct. (Speed on the Conspirators, July, 1865.)

116. "LAW OF NATIONS."-A code of public instruction, which defines the rights and prescribes the duties of nations in their intercourse with each other. 1 Kent's Com. 1,2; Halleck's International Law, § 1, and numerous citations.

Mr. Randolph, then Attorney-General, said: "The law of gress change nations, although not specifically adopted by the Constitution, is essentially a part of the law of the land. Its obligation commences and runs with the existence of a nation, subject to modification on some points of indifference." (See opinion Attorney-General, vol. 1, page 27.) Hence Congress may define those laws, but cannot abrogate them; or, as Mr. Randolph says, may "modify on some points of indifference." (Speed on the Conspirators), July, 1865.

117, 118.

That the laws of nations constitute a part of the laws of the land is established from the face of the Constitution, upon principle and by authority. Id.

But the laws of war constitute much the greater part of the law of nations. Like the other laws of nations, they exist and are of binding force upon the departments and citizens of the government, though not defined by any law of Congress. Id.

Congress can declare war. When war is declared, it must be, When war under the Constitution, carried on according to the known laws is declared and usages of war amongst civilized nations. Id.

how must it be waged?

118.

What is the

[11.] To declare war, grant letters of marque and reprisal, and make rules concerning captures on land war power? and water.

117. "TO DECLARE WAR."-See Confederation, Art. IX. p. 14.

"TO DECLARE," may be as well by a formal recognition, as by a How is war declaration in advance. Thus in our war with Great Britain in declared ? 1812: "That war be, and is hereby declared to exist, between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories." Act of 1812, ch. 102; 2 St. 755; Story's Const. § 1174; Talbot v. Seaman, 1 Cranch, 28; Bas v. Tingey, 4 Dall. 37.

And in the war with Mexico, in 1846, after the commencement of hostilities: "Whereas war exists, with Mexico, by the act of Mexico." 9 St. 9.

So in the qualified war with France, in 1798, which was regulated by sundry acts confining the war within certain limits. Rawle's Const. ch. 9, p. 109.

During the rebellion, the existence of the civil war was recognized in a number of acts of Congress, but there was no formal recognition of the war.

To declare war in Great Britain is the exclusive prerogative of the Crown; and in other countries, it is usually, if not universally, confided to the executive department. (1 Tucker's Black. App. 271; 4 Black. Com. 257, 258.) Story's Const. § 1170. See Federalist, No. 41. See Halleck's International Law, ch. 20-24, pp. 289992.

116.

WAR is "that state in which a nation prosecutes its right by What is force." The Prize Cases, 2 Black, 666. (A state of forcible conten- war? tion; of armed hostility between nations. Grotius de jure bell. lib. 1. c. 1.) Civil war exists when the regular course of justice is What is interrupted by revolt, rebellion, or insurrection, so that courts of civil war? justice cannot be kept open. The Prize Cases, 2 Black, 667. 132. Congress alone has the power to declare a national or foreign war; 234, 235. but not against a State, or any number of States, under the Constitution. But the President may resist the insurrection without a declaration of war. The Prize Cases, 2 Black's Rep. 668, 669.

A civil war is waged because the laws cannot be peaceably Why is civil enforced by the ordinary tribunals of the country through civil pro- war waged? cess and by civil officers. Speed on the power to execute the assassins of the President, p. 5.

119. As a consequence of the power of declaring war, and What can the governmaking treaties, the government possesses the power of acquiring ment acterritory, either by conquest or by treaty. American Ins. Co. V. quire under Canter, 1 Pet. 542; Scott v. Sandford, 19 How. 393. In this case, this power? the power to acquire territory is not rested upon any particular power in the Constitution, but is unqualifiedly asserted to exist. Id. 231, 232.

229-232.

446-7. It would seem to be rested upon the power to admit new States. Id. All contracts made by the citizens of one country with What is the the citizens or subjects of another, which countries are at war with effect of war each other, are void. Griswold v. Edrington, 16 Johns. 444.

upon the citizens?

250, 254.

In

this case, Chancellor Kent exhausts the whole learning upon the subject down to 1819. He says: "The law has put the sting of disability into every kind of voluntary communication and contract with an enemy which is made without the special permission of the government." (16 Johns. 483); Jackson v. Johnson, 11 Johns. 418; 1 Kent's Com. 66; The Ann Dodson, 2 Wh. 27; The Mary & Susan, 1 Wh. 57; 2 Cond. 599; The Julia, 8 Cr. 181-203; 3 Cond. 152. When one nation is at war with another nation, all the subjects or citizens of the one are deemed in hostility to the subjects or citizens of the other; they are personally at war with each other, and have no capacity to contract. White et al. v. Burnley, 20 How. 249; Ogden v. Lund, 11 Tex. 690. The court is bound judicially to know when war existed. Id.; The Prize Cases, 2 Black, 666. The inhabitants are not permitted to pass from the one country to the other. Ogden v. Lund, 11 Tex. 690. The military upon the frontier, from the necessity of the case, must be charged with the duty of preventing such intercourse. Id. To prevent the running of a ferry between Texas and Mexico, while the United States and Mexico were at war, was lawful, and affords no ground of action the effect of against the officer. Id. 692. See Constitution of the Confederate States, same section. Paschal's Annotated Dig., note 217. These general rules of law are applicable alike to civil and international wars: that all people, of each State or district, in insurrection against the United States, must be regarded as enemies, until, by the action of the legislature and the executive, or otherwise, that relation is permanently changed. (The Prize Cases, 2 Black, 687.) Mrs. Alexander's Cotton, 2 Wall. 419; The Venice, 2 Wall. 274; The Prize Cases, 2 Black, 666.

What was

the late rebellion?

Does this

This power necessarily extends to all legislation necessary to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of the campaign. Ex parte Milligan, 4 Wallace, 139.

When two governments, foreign to each other, are at war, or when a civil war becomes territorial, all of the people of the respective belligerents become, by the law of nations, the enemies of each other. Speed.

But this only authorizes hostility by those who are empowered justify ma- by the express or implied command of the State, &c.

rauders?

115, 116.

112.

How were the assassins tried?

Hence it is that, in land wars, irregular bands of marauders are liable to be treated as lawless banditti, not entitled to the protection of the mitigated usages of war as practiced by civilized nations. (Wheaton's Elements of International Law, page 406, 3d edition; Speed on the Assassins, p. 9.)

"A pirate, an outlaw, or a common enemy to all mankind may be put to death at any time. It is justified by the law of nature and nations." (Patrick Henry; 3 Elliott's Debates on Federal Constitution, p. 140; Speed.)

The assassins were tried by military commission and convicted,

and a part of the conspirators executed, and a part of them sentenced to imprisonment for life. See the volumes containing the trial of the conspirators; and see the trial of Surratt.

due?

Until Congress passes laws upon the subject of war and reprisals Define the no private citizen can enforce such rights; and the judiciary is relations during the incapable of giving them any legitimate operation. (Brown V. late rebelUnited States, 8 Cr. 1.) Story's Const. § 1177. And although lion. Mrs. Alexander had taken the oath of amnesty, while she remained in rebel territory she had no standing in court. Mrs. Alexander's Cotton, 2 Wall. 421. The cotton captured on the land by the naval forces, in a rebellious State, was not the subject of prize. See 9 Op. 524, 525; (Speed, 4-10). The Queen of England recognized the Confederates as neutrals, on the 13th May, 1861. Id. 669. The President must determine when insurrection exists. The Prize Cases, 670. His proclamation of blockade, of 19th April, 1861, is conclusive upon the courts; and neutrals were bound by it. Id. Under this very peculiar Constitution, although the citizens owe a supreme allegiance to the Federal To whom is Government, they owe also a qualified allegiance to the State in allegiance which they are domiciled. Their persons and property are subject to its laws, and they are liable to be treated as enemies. Id. 17, 220. 673. When the legislative authority has declared war, the executive authority, to whom its execution is confided, is bound to carry What are the it into effect; he has a discretion vested in him, as to the manner president's and extent; but he cannot lawfully transcend the rules of warfare powers? established among civilized nations. Brown v. United States, 8 Cr. 153. The Supreme Court of the State of Pennsylvania has decided that the United States conscription is unconstitutional. Judge What as to Woodward gave the decision. The following is an abstract: conscrip He starts with the idea that the conscription levies upon, takes, and destroys the militia of the States, and in spite of the States. He shows that in 1706 and 1707 a conscription was attempted in the British Parliament, but laid aside as unconstitutional; and he reasons that our fathers, in making the Federal Constitution, never intended to give a central government power over life and liberty not found even in the British constitution. Standing armies are the jealousies of Britons. Our fathers never intended to raise them by force, independent of the States. General Washington, in suppressing the whisky rebellion of Pennsylvania, paid the most scrupulous attention to the rights, and interests, and laws of Pennsylvania. Citizens cannot be made deserters of before they have been soldiers, as the conscription act declares.

"There are other features of the conscript law that deserve criticism; but not to extend my opinion further, I rest my objection to its constitutionality upon these grounds:

"1st. That the power of Congress to raise and support armies does not include the power to draft the militia of the States. 2d. That the power of Congress to call forth the militia cannot be exercised in the forms of this enactment. 3d. That a citizen of Pennsylvania cannot be subjected to the rules and articles of war until he is in actual military service. 4th. That he is not placed in such actual service when his name has been drawn from a wheel, and ten days'

tion?

124.

130.

130-133.

What of

marque and reprisal?

Define marque.

What is the meaning of reprisal?

What is the power as to armies ?

Define to raise and support.

notice thereof has been served upon him." Kneedler v. Lane, 9 Wright, 331; 48 Penn. 331.

The conscript laws of the Confederacy, which declared every man from seventeen to fifty years of age a soldier, were held, by a majority of the Supreme Court of Texas (under this same power) to be constitutional, Mr. Justice Bell dissenting. Paschal's Annotated Digest, notes 217-219; Ex parte Coupland; 26 Tex. 394.

66

119. 'GRANT LETTERS OF MARQUE AND REPRISAL." This power would be incident to the power to declare war. (See Mr. Madison's Letter to Mr. Cabell, 18th Sept., 1828.) Story's Const. $1175.

120. MARQUE is, in public law, the frontier boundary of a country. And "to grant" is permission to pass the frontier of a country in order to make reprisals. (See March's Letters of Marque; 1 Bl. Com. 258.) Burrill's Law Dic., MARQUE. Generally used as synonymous with "reprisal." 1 Black, Com. 258. See Halleck's International Law, 391-398; Wheaton's International Law, part 4, chap. 2, sec. 10.

121. "REPRISAL." [Reprisalia.] A retaking; taking back; recaption. The repossessing one's self of a thing unjustly taken by another. 3 Bl. Com. 4. A taking of one thing in satisfaction for another (captio rei unius in alterius satisfactionem)—frequently used in the plural reprisalia. Spelman; Loccende Jur. Mar. lib. 3, C. 5; 1 Kent's Com's 61.

Burrill's

A taking in return; a taking by way of retaliation. Law Dic. REPRISAL. In this case, letters of "marque and reprisal" (words used as synonymous, the latter [reprisal] signifying a taking in return, the former ["letters of marque"], the passing the frontiers in order to such taking) contain an authority (grant) to seize the bodies or goods of the subjects of the offending State wherever they may be found, until satisfaction is made for the injury. (1 Black. Com. 258, 259; Bynkershock on War, ch. 24, p 182, by Duponceau; Valin. Traité des Prises, pp. 223, 321; 1 Tuck Black. Com., App. 271; 4 Elliot's Debates, 251.) Story's Const. § 1176. Halleck, 391, 393.

[12.] To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years.

122. This power did not exist under the Articles of Confede ration. For discussions of the limitation and necessities of this power, see 4 Elliot's Debates, 220, 221; 1 American Museum, 270, 273, 283; 5 Marshall's Life of Washington, App., note 1; Id. ch. 3, p. 125, 123; ch. 5, p. 212-220; ch. 6, p. 238-248; 2 Elliot's Debates, 93, 285, 286, 307, 308, 309, 319, 320, 430, 438; Federalist, Nos. 23, 24-29, 41; Story's Const. § 1168-1198, 3d ed. and

notes.

123. "TO RAISE AND SUPPORT," in practice, means to educate, commission, enlist, draft, conscript, feed, clothe, transport and