The insurrection of the Southern States did not become a civil war until after the proclamation of President Lincoln, issued Aug. 16, 1861, pursuant to act of July 13, 1861, placing the inhabitants of the Southern States in a state of insurrection. Perkins v. Rogers (1871), 35 Ind. 124, 9 Am. Rep. 639.

Exercise of war powers.-By virtue of its power to make war and suppress insurrection, the Government has the right to transport troops to all parts of the Union by the usual and most expeditious mode, and a State tax on passengers carried out of the State is void as an interference therewith. Crandall v. Nevada (1867), 6 Wall. 35, 44.

Under its power to declare war, Congress may carry on war and collect revenue for that purpose. The Legal Tender Cases (1870), 12 Wall. 457, 546.

As incident to the power of making war, the National Government has the power to bury the dead who have fallen in battle and to appropriate for this purpose such lands for national cemeteries as are necessary to hold such burial places and protect them from desecration. (1869) 13 Op. Atty. Gen. 131.

When Congress declares war, by that declaration it puts in force the laws of war, and the war powers of the Government which are not to be exercised, under the Constitution, in time of peace, come into full force by virtue of the Constitution, and are to be exerted by the President and Congress. After the declaration of war, every act done in carrying on the war is an act done by virtue of the Constitution, which authorized the war to be commenced. Every measure of Congress, and every Executive act performed by the President, intended and calculated to carry the war to a successful issue, are acts done under the Constitution, whether the act or the measure be for the raising of money to support armies, or a declaration of freedom to fill their ranks and weaken the enemy, whether it be the organization of military tribunals to try traitors, or the destruction of their property by the advancing army, without due process of law, and the validity of such acts must be determined by the Constitution. McCormick v. Humphrey (1866), 27 Ind. 144.

Since Congress has the constitutional power to declare war, it follows that Congress must possess the choice of means, and must be empowered to use any means which are, in fact, conducive to the exercise of the constitutional grant of power. Id.

The law of nations imposes the only limit on the war power of the United States, and there is no difference in this respect between a foreign and a civil war. Knoefel . Williams (1868), 30 Ind. 1.

Assuming that a conscript by furnishing a substitute, as authorized by act of Apr. 16, 1862, made a contract with the Government, the latter, under the power to declare war and raise and support armies, may annul such contract without making any compensation; exemption from military service not being property, but a mere personal privilege. Gatlin v. Walton (1864),

60 N. C. 325, 1 Winst. 333.

The war powers of the Federal Government are not strictly and narrowly defined. They are broad grants of extensive power. They include not only loose matters specifically stated, but all others reasonably implied as necessary to the execution of the main matter of waging war to a successful conclusion. These powers are not limited to battle on land and sea, in the air, and under the waters. They inherently carry with them subsidiary faculties to deal comprehensively with all exigencies created by war or arising from its inception, progress, and termination. Lajoie v. Milliken (1922), 242 Mass. 508, 136 N. E. 419.

The soldier's and sailor's civil relief act is a legitimate exercise of the power conferred by this section. Pierrard v. Hoch (1920), 97 Or. 71, 184 Pac. 494, affirmed on rehearing (1920), 191 Pac. 328; Kuehn v. Neugebauer (Tex. Civ. App. 1919), 216 S. W. 259.

The implied war power of Congress over intoxicating liquors extends to the enactment of laws which will not merely prohibit the sale of intoxicating liquors, but will effectually prevent their sale. Thus Congress, in the exercise of the war power, could, in order to make effective the existing war-time prohibition against the manufacture and sale of intoxicating liquors, enact the provisions of the Volstead Act of October 28, 1919 (41 Stat. 305), extending such prohibition to malt liquors, whether in fact intoxicating or not, with alcoholic content of as much as one-half of 1 per cent of alcohol by volume. Ruppert v. Caffey (1920), 251 U. S. 264.

The mere existence of a state of war can not suspend or change the operation upon the power of Congress of the guaranties and limitations of the fifth and sixth amendments as to delegating legislative power to courts and juries, penalizing indefinite acts, and depriving citizens of the right to be informed of the nature and cause of accusations against them. U. S. v. L. Cohen Grocery Co. (1921), 255 U. S. 81, affirming (D. C. 1920), 264 Fed. 218. See to the same effect Tedrow v. A. T. Lewis, etc. (1921), 255 U. S. 98; Kinnane v. Detroit Creamery Co. (1921), 255 U. S. 102; Weed v. Lockwood (1921), 255 U. S. 104; G. S. Willard Co. v. Palmer (1921), 255 U. S. 106; Oglesby Grocery Co. v. U. S. (1921), 255 U. S. 108; National City Bank v. U. 8.

(D. C. 1921), 275 Fed. 855, affirmed (C. C. A. 1922), 281 Fed. 754, writ of error dismissed (1923), 263 U. S. 726. See also Kennington v. Palmer (1921), 255 U. S. 100; Weeds v. U. S. (1921), 255 U. S. 109.

Martial law.-Martial law can not suspend the Constitution as the guardian of the person and property of a private citizen who is not an enemy to the Government, and has been guilty of no hostile act. Corbin v. Marsh (1865), 63 Ky. (2 Duv.) 193.

Martial law is limited to the theater of active military operations, where no civil authority remains, and there is a necessity to furnish a substitute to preserve the safety of the Army and society; and martial rule can only prevail until the laws can have their free course. McLaughlin v. Green (1874), 50 Miss. 453.

See Ex parte Vallandigham (C. C. 1863), Fed. Cas. No. 16816.

Acquisition and government of territory.— The Government possesses the power of acquiring territory by conquest. American

Ins. Co. v. Canter (1828), 1 Pet. 511, 542; Pollard v. Kibbe (1840), 14 Pet. 353, 392. The power to declare war is conferred on Congress to enable the General Government to vindicate by arms its own rights and the rights of its citizens, and a war declared by Congress is not presumed to be waged for conquest, and the boundaries of the United States may only be extended by the treaty-making power or legislative authority. Fleming v. Page (1850), 9 How. 603, 614.

A military occupation which will give the right to exercise governmental authority is not merely an invasion, but is an invasion plus possession of the enemy's country for the purpose of holding it temporarily, at least. Macleod v. U. S. (1913), 229 U. S. 416.

The power conferred on the Government to make war and treaties implies the power to acquire territory, either by conquest or treaty; and the power to govern such territory until it is fit to be admitted into the Union as a State results from the acquisition thereof. Nelson v. U. S. (C. C. 1887), 30 Fed. 112, affirming (D. C. 1886), 29 Fed. 202.

pation continues, and ends with the restoration of peace and the resumption of the regular civil municipal government. Isbell v. Farris (1868), 45 Tenn. (5 Cold.) 426.

Captures on land and water.-Enemy property found here, on land, at the commencement of hostilities, can not be condemned without a legislative act authorizing confiscation. The declaration of war is not such an act. Brown v. U. S. (1814), 8 Cranch, 110, 125, 126.

Captured and abandoned property act of Mar. 12, 1863, held within the power to "make regulations concerning captures on land and water." Haycraft v. U. S. (1874), 22 Wall. 81, 94.

Seizure and confiscation of property.-A military commander, under circumstances of actual, urgent, immediate, and pressing public necessity, may take private property. Harmony v. Mitchell (C. C. 1850), Fed. Cas. No. 6082; Holmes v. Sheridan (C. C. 1870), Fed. Cas. No. 6644.

The mere declaration of war does not confiscate enemy property or debts due to an enemy, nor does it so vest the property or the debts in the Government, as to support judicial proceedings for the confiscation of the property or debts, without expression of the will of the Government, through its proper department, to that effect. Under the Constitution or the United States, the power of confiscating enemy property and debts due to an enemy is in Congress alone. Britton v. Butler (C. C. 1872), Fed. Cas. No. 1903.

The United States may take and use real estate during war for war purposes, but may not, by any summary proceeding, divest the title of the owner, nor the power to retain possession beyond the period during which the occasion for the taking continued. (1896) 21 Op. Atty. Gen. 382.

If the provisions of the confiscation act of July 17, 1862, are unconstitutional and vold, it seems clear that Congress has no power to prohibit the State courts from giving to the owners the relief to which they are entitled by the laws of the States. Norris v. Doniphan (1863), 61 Ky. (4 Metc.) 385.

The right given by the Constitution to make war upon rebels gives the power to perform acts of war, and no other power whatever, and the seizure and confiscation of enemy's property on land are not acts of war. Id.

Raising and supporting armies-in general-A State law imposing a tax on passengers held void, as interfering with the power of the Federal Government to declare

and prosecute war, and as a necessary inci dent to raise and transport troops through and over territory of any State. Crandall v. Nevada (1867), 6 Wall. 35, 44.

Among the powers assigned to the National Government is the power "to raise and support armies," and the power "to provide for the Government and regulation of the land and naval forces." The execution of these powers falls within the line of its duties; and its control over the subject is plenary and exclusive. It can determine, without question from any State authority, how the armies shall be raised, whether by voluntary enlistment or forced draft, the age at which the soldier shall be received, and the period for which he shall be taken, the compensation he shall be allowed, and the service to which he shall be assigned. Tarble's Case (1871), 13 Wall. (U. S.) 397, 408.

The act of July 15, 1870 (16 Stat. 314), providing for the reduction of the Army by mustering out certain officers, was an exercise of the power "to raise and support armies." Street v..U. S. (1889), 24 Ct. Cl. 230; affirmed (1890), 133 U. S. 307.

This clause does not confer on Congress the power to designate by law a person to fill a military office, since this would be in direct conflict with the power of appointment given the President by Const. art. 2, sec. 2. (1884), 18 Op. Atty. Gen. 18, 26.

The power to raise and support armies is plenary and without limitation or restriction. (1909) 27 Op. Atty. Gen. 260.

The power of Congress to provide for the trial and punishment of military and naval offenses, under the above and other provisions of Article 1, section 8, of the Constitution, is independent of the judicial power defined in Article 3 of the Constitution. U. S. v. McDonald (D. C. 1920), 265 Fed. 754.

Conscription.-The Constitution of the United States authorizes Congress to raise armies, and also to call forth and organize the militia of the several States. Under this twofold power, both regular national armies and occasional militia forces from

To provide and maintain a Navy;

the several States may be raised, either by conscription or in other modes. McCall's Case (D. C. 1863), Fed. Cas. No. 8669.

Under the grant of power to raise and support armies and call out the militia Congress has power to make and authorize such orders and regulations as may be necessary to prevent those who are liable by law to military service from evading that duty, such as an order to prevent them from leaving the country and State, to avoid an impending draft. Allen v. Colby (1867), 47 N. H. 544.

Enlistment of minors.-This clause gives Congress power to enlist minors in the Army without the consent of their parents. U. S. v. Bainbridge (C. C. 1816), Fed. Cas. No. 14,497.

Under this clause Congress may provide for the enlistment of minors, with or without the consent of their parents, and may give such effect and conclusiveness to the contract of enlistment as it may deem best. In re Davison (C. C. 1884), 21 Fed. 618.

The United States has a right to prescribe the rules and conditions under which voluntary or compulsory services are to be rendered by citizens, and the period at which persons reach their majority and become sui juris with respect to the ordinary affairs of life can not abridge this power of the General Government. (1896) 21 Op. Atty. Gen. 327.

See also 248, 249, post.

State courts.-In view of the constitutional grant of power to Congress "to raise and support armies" and "to provide for the Government and regulation of the land and naval forces," a State judge has no Jurisdiction to issue a writ of habeas corpus, or to continue proceedings under the writ when issued, for the discharge of a person held under the authority, or claim or color of authority, of the United States, by an officer of that Government. Tarble's Case (1871), 13 Wall. (U. S.) 397, 408.

Calling and service of militia.-The President alone is made the judge of the necessity of calling the militia into the service of the United States, and he acts upon his responsibility under the Constitution. Martin v. Mott (1827), 25 U. S. (12 Wheat.) 19; Vanderheyden v. Young (N. Y. 1814), 11 Johns. 150. See also Luther v. Borden (1849), 7 How. 1; in re Brockman (Sup. Ct. D. C. 1917), 45 Wash. L. R. 133; (1856) 8 Op. Atty. Gen. 8.

The Constitution, which enumerates the exclusive purposes for which the militia may be called into the service of the United States, affords no warrant for the use of the militia by the General Government, except to suppress insurrection, repel invasions, or to execute the laws of the Union, and hence the President has no authority to call forth the Organized Militia of the States and send it into a foreign country with the Regular Army as a part of an

The power of the President under the Federal Constitution to call the whole militia of any part of the Union into service in case of invasion may be exercised by his delegate, i. e., a general commanding in chief in a particular district; and all citizens subject to militia duty may thereby be placed under military law, but this is the extent of martial law, and all beyond is usurpation. Johnson v. Duncan (La. 1815), 3 Mart (0. 8.) 530, 6 Am. Dec. 675.

Under this clause the raising of militia by draft under order of the President and the punishment of delinquents refusing or neglecting to serve are matters of Federal cognizance. Matter of Spangler (1863), 11 Mich. 298.

Act of Feb. 28, 1795 (R. S. 1642), passed by virtue of this clause, gave the President authority in case of invasion or danger of it to call forth the militia, which thereafter were subject to the same rules as the United States troops, and provided a penalty for failure of the militia to obey the President's orders. Hold, thereunder, that on the President's calling on the State executives for militia pursuant to the express provisions of act of Apr. 18, 1812, whatever orders were given by the governor respecting the militia called for were given in pursuance of the President's call, and their breach was a breach of the President's orders. Commonwealth v. Irish (Pa. 1815), 3 Serg. & R. 177, note.

The authority under this clause to call forth the militia includes the power to punish delinquent militiamen who fail or refuse to respond. Duffield v. Smith (1818), 3 Serg. & R. (Pa.) 590, 593. See also Mills v. Martin (N. Y. 1821), 19 Johns. 7, as to amenability of militiamen to laws of United States in times of peace and when not in the service or pay of the United States.

Suppressing insurrection.-The authority of the United States to suppress the rebellion is found in the power to suppress insurrection and carry on war. Texas v. White (1868), 7 Wall. 700, 727.

Authority to suppress rebellion is found in the power to suppress insurrection and carry on war; and authority to provide for the restoration of State governments, under the Constitution, when subverted and overthrown, is derived from the obligation of the United States to guarantee to every State in the Union a republican form of Government. The latter, indeed, in the case of a rebellion which involves the government of a State, and, for the time, ex

cludes the national authority from its limits, seems to be a necessary complement to the other. Texas v. White (1868), 74 U. S. (7 Wall.) 700.

The authority to make war to suppress rebellion is derived from this clause, and the provision in art. 2, sec. 3, that the President shall take care that the laws be faithfully executed. Norris v. Doniphan (1863), 61 Ky. (4 Metc.) 385.

Act of Mar. 3, 1863, authorizing the raising of a national military force, to suppress an existing rebellion, by a draft, is not repugnant to this clause, by interfering with the reserved rights of the States over their own militia.

Act of government or officers of States in insurrection or rebellion.-Where the militia of a State are employed by the governor to resist the authority of the United States, they become public enemies. The fact that the governor was lawfully elected and qualified, and that the militia were lawfully organized and called out, furnishes no excuse or claim for compensation to those who knowingly supplied them with the means of prosecuting hostilities, though a warrant on the Treasury was issued under the forms of law. State ex rel. Blakeman v. Hays (1872), 49 Mo. 604.

The acts of an officer, performed after the President of the United States bas declared the county to be in insurrection and rebellion, are void. Hawver v. Seldenridge (1867), 2 W. Va. 274, 94 Am. Dec. 532.

Where a State government is in insurrection or rebellion and committing acts of hostility against the Government of the United States, and the same is so declared by the political department of the United States Government, the acts of all officers claiming allegiance to and adhering to the State government are null and void. Id.

Although a trespass is committed by order of the authorities of a State acting in pursuance of the law thereof, it can not be justified when the State is engaged in rebellion against the Government and laws of the United States. Lively v. Ballard (1868), 2 W. Va. 496.

Repelling invasion.-The power to repel Invasion includes the power to provide against the danger of invasion. Martin v. Mott (1827), 12 Wheat, 19, 28. Constitution. Art. I, par. 8, cl. 15.

Status of National Guard.-The National Guard, when not called into the service of the United States, is not part of the Army but is a State organization. Hence members thereof are entitled to the benefits of State workmen's compensation act. State v. Johnson (1925), 186 Wis. 1, 202 N. W. 191.

Militia power and Army power.-The militia power reserved to the States by the above clause is not to be confounded with the power conferred upon Congress to raise armies. There was left under the jurisdiction of the States undelegated the control of the militia to the extent that such control was not taken away by the exercise by Congress of the power to raise armies. Selective Draft Law Cases (1918), 245 U. S. 366.

Organization and government of militia.The Military Code of Illinois (Laws 1879, p. 192), for the enrollment, organization, and government of the State militia, is a valid exercise of the police power, and is not unconstitutional as encroaching upon the power of Congress, under this clause, or as falling within the prohibition of art. 1. sec. 10, that no State shall, without the consent of Congress, keep troops in time of peace; the provisions of art. 11, secs. 5, 6, of such Military Code, forbidding unauthorized bodies of men to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town. Presser v. State (1886), 116 U. S. 252. See also Dunne v. People (1879), 94 Ill. 120, 34 Am. Rep. 213.

The right of control of the militia by the States and their right to legislate regarding the militia has been fully recognized by the courts, both rights being concurrent with that of the Congress within constitutional limitations to legislate regarding it and its control, the right of the State yielding to the superior right of Congress. Alabama Great Southern R. Co. v. U. S. (1914), 49 Ct. Cl. 522.

The governor of a State has no power to depose an officer, or interfere with the organization of a regiment after such officer or regiment is mustered into service of the United States. (1862) 10 Op. Atty. Gen. 279.

This clause does not confer on Congress the power to designate by law a person to fill a military office, since this would be in direct conflict with the power of appointment given the President by Const. art. 2, sec. 2. (1884) 18 Op. Atty. Gen. 18, 26.

When State militia organizations with officers commissioned by the governor are mustered into United States service, the governor thereafter has no authority to remove them. (1898) 22 Op. Atty. Gen. 225.

Power of Congress in general.-Acts of May 2, 1792, May 8, 1792, Jan. 3, 1795, Feb. 28, 1795, and Apr. 18, 1814, providing for calling forth the militia to execute the laws of the United States, suppress insur

rections, and repel invasion, and 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, amount to a full execution of the powers conferred on Congress by the Constitution. Houston v. Moore (1820), 5

Wheat. 1, 12.

Congress is not deprived of its power under this clause when the necessity for its exercise is called out by civil war. Tyler v. Defrees (1870), 11 Wall. 331, 345.

Under the twofold power to raise armies and call forth the militia, both regular national armies and occasional militia forces from the several States may be raised, either by conscription or in other modes. McCall's Case (D. C. 1863), Fed. Cas. No. 8669.

The provision of the State Military Code that the commander in chief shall have power to disband companies of the National Guard whenever, in his judgment, the efficacy of the State force will be thereby increased, is not in conflict with power of Congress to call forth the militia, and provide for their government while in the service of the United States. People v. Hill (1891), 13 N. Y. Supp. 186; judgment affirmed (1891), 126 N. Y. 497, 27 N. E. 789.

The power of commanding the service of the militia in times of insurrection and invasion is a natural incident to the duties of superintending the common defense, and of watching over the internal peace of the country, and was wisely vested in Congress by the framers of the Constitution. In re Griner (1863), 16 Wis. 423.

State laws.-Sec. 21, act of Pa. Mar. 28, 1814, prescribing punishment for militiamen neglecting or refusing to serve in re sponse to call to Federal service, held valid. Houston v. Moore (1820), 5 Wheat. 1.

Under this and the following clause the only instance where governmental powers may be exercised by the United States is when the militia shall be employed in the service of the United States. At all other times the whole government of the militia is within the province of the State, and therefore any legislation which the State may adopt relating to the government of the militia in nowise contracts powers conferred upon Congress, as long as it does not infringe upon the method of organization. People v. Hill (1891), 59 Hun. 624, 13 N. Y. Supp. 637; judgment affirmed (1891), 126 N. Y. 497, 27 N. E. 789.

Courts-martial, organized under the authority of a State, have not power, it seems, to assess fines on delinquent militiamen for