Page images
PDF
EPUB

modern Europe the king alone declares war; but this prerogative is greatly modified in England, where the crown may indeed declare war, but cannot raise a dollar with which to carry it on without the consent of Parliament. The result is, that the real power resides in Parliament, because the crown never would venture upon a declaration of war without being sure of their support and approval. For why declare war in opposition to the views of Parliament, when it possesses the power to nullify the declaration by withholding the supplies necessary to give it effect?

174. The Constitution of the United States has not thus separated the real and nominal authority, but has given directly to Congress both the power to declare war, and, as we shall presently see, the power to provide the means to carry it on. The check to a wanton and unnecessary exercise of this power is two-fold first, the virtue of Congress, and, secondly, their responsibility to the people. With one-third of the Senate and the whole of the House of Representatives to be elected every second year, it may well be presumed that Congress will not declare war except upon grounds that will justify them before the tribunal of public opinion.

1741. The power to declare war is exclusive in Congress, and necessarily involves the power to prosecute it by all means and in all modes known and recognized

in legitimate warfare. Hence it includes the right to seize and confiscate the property of the enemy, and to acquire territory, either by conquest or by treaty. And when the authority of the United States is resisted by combinations of its citizens too strong for the civil arm of the government, it may assume the attitude of a belligerent, without relinquishing its character of a sovereign, and may enforce its rights in both capacities. But it cannot, in prosecuting its belligerent and sovereign rights against a rebellion of its citizens, create a military department out of one or more states not included in the circle of rebellion, and authorize the military commander within such department to arrest a citizen of such state, and try him before a military commission for an alleged crime. The Constitution secures to the citizen a trial by jury, and in states which have upheld the government, and where the courts are open and their process unobstructed, he cannot be held to answer for a capital or other infamous crime, unless on presentment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger, nor be deprived of life, liberty, or property without due process of law. And due process of law in such a case does not mean a court-martial.

Letters of Marque and Reprisal.

175. Letters of marque and reprisal are commissions or letters which authorize the persons to whom they are granted to capture the property of a foreign state, particularly its merchant vessels. They are usually granted in a time of war, and as a means to distress the enemy. They are also occasionally granted in peace, as, for example, when a nation has been injured in its own rights, or in those of its subjects, without being able to obtain justice from the tribunals or sovereign of the country against which they are issued.

176. Before private letters of marque are granted, proof must be produced of the amount of injury which has been sustained, which is set forth in the letters, in order that the surplus of property captured may, after the payment of damages, interest, and expenses, be restored to the owners. Hence all vessels. seized under those letters must be brought into some port, and condemned and sold by the order of a competent court in order that the surplus, if any, may be thus restored.

177. The general principles relating to land and maritime captures are defined by the law of nations; but the rules respecting the division of the captured property, and many other details, each government

regulates for itself. Congress, as an encouragement and reward of valor, have established a rule that when a captured ship is of equal or superior force to the ship making the capture, she shall be the sole property of the captors. In all other cases the property is divided equally between the captors and the United States.

The Army.

178. As we have already remarked, the power is confided to Congress to raise and support armies ; but no appropriation of money to that use can be for a longer term than two years.

179. The appropriation is confined to two years, in order to prevent the keeping on foot a standing army without the continued consent of the Representatives of the people. The actual practice is, to make the appropriations not even for two years, but only for the current year.

180. There is no restriction upon the power of Congress in raising armies as to the persons they will enlist. Hence they may enlist minors in the army or navy, without the consent of their parents. Public policy requires that a minor should be at liberty to enter into a contract to serve the state, whenever such contract is not positively forbidden by the state itself. But an Act of Congress directs

that no person under the age of eighteen shall be mustered into the United States service.

The Navy.

181. Congress are also empowered to provide and maintain a navy.

182. Congress possessed the same power under the Confederation, but were never able, from want of means, to build and equip a navy. It was not until some years after the adoption of the Constitution, and the organization of the government, that the foundation of a navy was laid. In 1797 three frigates were completed, and were named the Constitution, the United States, and the Constellation. These vessels were the germ, as it were, of our present naval force.

Government of the Army and Navy.

183. With the power to raise armies and provide a navy is associated the necessary power to make rules for the government and regulation of the land and naval forces.

The Militia.

184. Congress have also the authority to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.

« PreviousContinue »