whole action of the government in the case, is applied with the same force and directness to post-roads," and of course has a meaning equally broad and extensive in regard to both subjects. Although this part of the clause has been the occasion of little legislation, in consequence of the multiplicity of roads and highways already established by other agencies and for other purposes, yet the words "establish postroads" are a part of the Constitution, and may be applied to use, whenever a proper occasion for the purpose may arise. The idea that the government of the United States is dependent on the States or on private corporations, or any body else, for a right of way, over which to convey their mails, is not likely to be suggested by any body, or to be much heeded if it should be. The little that has already been done in that direction is sufficient to silence any such pretension, if there were any ground for making it.

CHAPTER XXIII.

LEGISLATIVE POWERS.-SPECIAL.

The War Powers.

§ 382. THE other great division of the powers of Congress, included in the 8th section, is the one embracing those necessary or appropriate to the "common defence of the United States." This great duty is devolved on the government, by its annunciation in the first sentence of the Constitution, as one of the purposes for which it was ordained and established by the American people. So far as it requires legislation, the duty is devolved on Congress by its being made the legislative department of the government, and vested with "all the legislative powers thereof. It is again, and still more specifically and emphatically, delegated to Congress in the first clause of this section; which, as we have seen, either authorizes them to do it by raising and appropriating money for the purpose, or more generally, and without reference to money; and it is of no importance which, for in either case it is one of the powers vested in the gov

ernment, and in this department of the government; and so Congress are to pass all laws necessary and proper for its execution.

§ 383. Several of the means for effecting this purpose are specified in this section. "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land or.water; to raise and support armies; to provide and maintain navies; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; to provide for arming and disciplining the militia, and governing such part of them as may be employed in the service of the United States." These are commonly called the war powers, and are examples, but by no means specifications, of all the measures that may be adopted for the execution of the more general power and duty of providing for the " common defence . . . of the United States." They are all duplications of that power in part; and several of them are reduplications and pleonasms in respect to each other. The power to make and carry on war includes all the rest; and the power to provide armies and navies includes the power to regulate and govern them. The militia, when called forth as a part of the national forces, may be governed as such; and yet an additional provision is made for the particular purpose. The rights and duties of war are to be

exercised subject to the law of nations. Belligerent enemies and friends, non-combatant enemies and neutrals, whether nations or individuals, are alike to be judged by it; and a treatise upon the subject would involve a discussion of all the principles and usages of the law of nations.1 But the rights and duties themselves, when ascertained, are to be executed and performed by such "necessary and proper" means, consistent with the law of nations, as Congress may adopt.

§ 384. As a declaration of war is not essential to its existence, and as a war may be made upon the country without it, so doubtless the United

1 "The legal consequences resulting from a state of war between two countries, at this day, are well understood, and will be found described in every approved work on the subject of internațional law. The people of the two countries 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 enemies' 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; . . . 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 take 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."- Brilliant et al. v. United States, The Prize Cases, 2 Black's Rep.

States may make a war upon a foreign State without it. Within the present century, we have had three public wars. That with England, in 1812, was initiated formally by Congress with a statutory declaration. That with Mexico, in 1846, Congress declared was instituted by Mexico, without their agency. The last, with the Southern rebellion of 1861, had been in operation several months before Congress were convened to consider it, and never was declared at all. Armies and navies may be assembled and organized by voluntary enlistment, by draft, by requisition of militia, or perhaps even by impressment, or any other method in use among civilized nations. In calling out the militia, it has not been the most usual method to call them by regiments, brigades, and divisions, with their officers, in their organized state; but to require the number they want, in such form as they please. As they are authorized to govern them while in the service, they may doubtless organize and govern them by their own appointees, if that is judged to be the most expedient course.

§ 385. A declaration of war is essentially a declaration of martial law, -a substitution of war, the rights of war, and the laws of war; for peace, the rights and law of peace; the one coextensive with the other. It is not intended to be less a system of right and justice, or to exclude or supersede the ordinary administration of it, except so far as that may fail or be inade