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A patent for a plan for constructing and drawing lotteries does not authorize the patentee to establish a lottery in a State whose laws prohibit lotteries on the ground that they are pernicious and destructive to frugality and industry, and introductive of idleness and immorality, and against the common good and general welfare. Vannini v. Paine, I Harrington, 65.


(k) Congress need not define in terms the offense of piracy, but may leave it to be ascertained by judicial interpretation. U. S. v. Smith, 5 Wheat. 153; U. S. v. Furlong, 5 Wheat. 184.

To define piracies in the sense of the Constitution is merely to enumerate the crimes which shall constitute piracy, and this may be done either by a reference to crimes having a technical name and determinate extent, or by enumerating the acts in detail upon which the punishment is inflicted. U. S. v. Smith, 5 Wheat. 153.

Congress may provide for the punishment of a conspiracy to burn a vessel with intent to injure underwriters. U. S. v. Cole, 5 McLean, 513.

Congress has the power to punish an attempt to commit a mutiny and revolt on a vessel on the high seas. U. S. v. Crawford, 1 N. Y. Leg. Obs. 288.


(1) Congress alone has the power to declare a national or foreign war. Perkins v. Rogers, 35 Ind. 124; Prize Cases, 2 Black. 635; The Tropic Wind, 24 Law Rep. 144.

The authority to suppress rebellion may be found in the power to declare war. Texas v. White, 7 Wall. 700; contra, Norris v. Doniphan, 4 Met. (Ky.) 385.

War declared by Congress is not the only war within the contemplation of the Constitution. The Tropic Wind, 24 Law Rep. 144.

Rebels are at the same time belligerents and traitors, and subject to the liabilities of both; while the United States sustains the double character of a belligerent and sovereign, and has the rights of both. These rights co-exist, and may be exercised at pleasure. Prize Cases, 2 Black. 635; The Amy Warwick, 2 Sprague, 123.

The power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted. It, therefore, includes the right to seize and confiscate all property of an enemy, and to dispose of it at the will of the captor. Miller v. U. S. 1I Wall. 268.

Congress has the power to confiscate the property of public enemies, whether the war is a civil or a foreign war. Miller v. U. S. 11 Wall. 268; Tyler v. Defrees, 11 Wall. 331; Prize Cases, 2 Black. 635; The Ned, I Blatch. Pr. 119.

The Constitution confers absolutely on the Government the powers of making war and of making treaties; consequently it possesses the power of acquiring territory either by conquest or by treaty. Am. Ins. Co. v. Canter, 1 Pet. 511; Fleming v. Page, 9 How. 603.

Under the power to " declare war," Congress has the power to make treasury notes a legal tender for public and private debts. Legal Tender Cases, 12 Wall. 457; Dooley v. Smith, 13 Wall. 604; Railroad Co. v. Johnson, 15 Wall. 195; Black v. Lusk, 69 Ill. 70; Hague v. Powers, 39 Barb. 427; Reynolds v. Bank, 18 Ind. 467; Lick v. Faulkner, 25 Cal. 404; Curiac v. Abadie, 25 Cal. 502; Kierski v. Mathews, 25 Cal. 591; Thayer v. Hedges, 23 Ind. 141; George v. Concord, 45 N. H. 434; Hintrager v. Bates, 18 Iowa, 174; Shollenberger v. Brinton, 52 Penn. 9; Jones v. Harker, 37 Geo. 503; contra, Hepburn v. Griswold, 8 Wall. 603; S. C. 2 Duval, 20.

The word "declare " has several senses. It may mean to proclaim or publish. It should, however, be interpreted in the sense in which the phrase is used among nations when applied to such a subject-matter. A power to declare war is a power to make and carry on war. It is not a mere power to make known an existing thing, but to give life and effect to the thing itself. Metropolitan Bank v. Van Dyck, 27 N. Y. 400.

The power to declare war presupposes the right to make war. The power to declare war necessarily involves the power to carry it on, and this implies the means. The right to the means carries all the means in the possession of the nation. Every able-bodied man is at the call of the Government, for as there is no limit to the necessity in making war, there can be no limit to the force to be used to meet it. Therefore, if the emergency requires it, the entire military force of the nation may be called into service. But the power to carry on war, and to call the requisite force into service, inherently carries with it the power to coerce or draft. A nation, without the power to draw forces into the field, would not in fact possess the power to carry on war. The power of war, without the essential means, is really no power; it is a solecism. Voluntary enlistment is founded in contract. A power to command differs essentially from a power to contract. The former flows from authority; the latter from assent. The power to command implies a duty to obey, but the essential element of contract is freedom to assent or dissent. It is clear, therefore, that the power to make war, without the power to command troops into the field, is impotent; in point of fact is no governmental power, because it lacks the authority to execute itself. Kneedler v. Lane, 45 Penn. 238; S. C. 3 Grant, 465.

An act of Congress emancipating the slaves of those who aid in a rebellion is valid. Bure v. Parker, 63 N. C. 131; Jacoway v. Denton, 25 Ark. 625.

The power is not limited to victories in the field and 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. Stewart v. Kahn, 11 Wall. 493; White v. Hart; 13 Wall. 646; s. c. 39 Geo. 306.

When the United States subdues a rebellious State, it has the right to determine and fix the conditions of returning peace. Jacoway v. Denton, 25 Ark. 625; Shorter v. Cobb, 39 Geo. 285.

Congress may pass an act suspending the statute of limitations during the existence of a rebellion. Stewart v. Kahn, 11 Wall. 493.

The genius and character of our institutions are peaceful, and the power to declare war was not conferred upon Congress for the purpose of aggression or aggrandisement, but to enable the General Government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens. A war, therefore, declared by Congress can never be presumed to be waged for the purpose of conquest or the acquisition of territory, nor does the law declaring the war imply an authority to the president to enlarge the limits of the United States by subjugating the enemy's country. Fleming v. Page, 9 How. 603.

Congress alone has the power to confiscate the property of an enemy, and debts due to an enemy. Brown v. U. S. 8 Cranch, 110; Britton v. Butler, 9 Blatch. 456.

A declaration of war does not of itself enact a confiscation of the property of the enemy within the territory of the belligerent. Brown v. U. S. 8 Cranch, 11O.

The power to make rules concerning captures on land and water extends to captures within the United States as well as to those that are exterritorial, and is an independent substantive power not included in that of declaring war. Brown v. U. S. 8 Cranch, 110.

Congress may impose such conditions upon commercial intercourse with an enemy in time of war as it sees fit, and make a payment for a license a part of the conditions. Hamilton v. Dillin, 21 Wall. 74.

Raise Armies.

(m) The power to "raise and support armies" must not be confounded with that given over the militia of the country. Unlike that it is unrestricted, unless it be considered as a restriction that appropriations of

money to the use of raising and supporting armies are forbidden for a longer term than two years. In one sense this is a practical restriction. Without appropriations no army can be maintained, and the limited period for which appropriations can be made enables the people to pass judgment upon the maintenance, and even existence, of the army every two years, and in every new Congress. But in this clause no limitation is imposed other than this indirect one, either upon the magnitude of the force which Congress is empowered to raise, or upon the uses for which it may be employed, or upon the mode in which the army may be raised. Kneedler v. Lane, 45 Penn. 238; S. C. 3 Grant, 465.

Congress may raise a military force by compulsory draft as well as voluntary enlistment. Kneedler v. Lane, 45 Penn. 238; S. C. 3 Grant, 465; In re Griner, 23 Wis. 423.

Congress may enact that a person shall be deemed in the military service from the time of the draft. Kneedler v. Lane, 45 Penn. 238; S. C. 3 Grant. 465.

In authorizing a national conscription by the National Government, the Constitution so far forth ignores the State governments entirely. With the action of the General Government they have legitimately nothing to do. If they attempt to aid they are wholly volunteers. Booth v. Woodbury, 32 Conn. 118.

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. Allen v. Colby, 45 N. H. 544.

The power to raise and support armies is an exclusive power in Congress. Ferguson v. Landram, I Bush. 548.

The militia of the States is also that of the General Government. It is the whole able-bodied population capable of bearing arms, whether organized or not. It is the material, and the only material contemplated by the Constitution, out of which the armies of the Federal Government are to be raised. Whether gathered by coercion or enlistment, they are equally taken out of those who form a part of the militia of the States. The rights of the States can not be affected by the mode of taking. It is clear that the States hold their power over the militia subordinate to the power of Congress to raise armies out of the population that constitutes it. Kneedler v. Lane, 45 Penn. 238; S. C. 3 Grant, 465.

Congress has the power to enlist minors into the naval service. U. S. v. Bainbridge, 1 Mason, 71; Comm. v. Murray, 4 Binn. 487.

Where an act of Congress to provide for a draft of men into the army also allows of the acceptance of volunteers, a State may pass a law giving a bounty to those who volunteer. State v. Demarest, 32 N. J. 528; Taylor

v. Thompson, 42 Geo. 9; Coffman v. Knightly, 24 Ind. 509; Board v. Bearse, 25 Ind. 110; Wilson v. Burkman, 13 Minn. 441; Winchester v. Corinna, 55 Me. 9; Speer v. Directors, 50 Penn. 150; Booth v. Woodbury, 32 Conn. 118; Comer v. Folsom, 13 Minn. 219; Ahl v. Gleim, 52 Penn. 432; State v. Jackson, 31 N. J. 189; contra, Ferguson v. Landram, I Bush. 548.

Military Regulations.

(n) Congress has the power to provide for the trial and punishment of military and naval offenses by court martial, in the manner practiced by civilized nations, and the power to do so is given without any connection between it and the judicial power The two powers are entirely independent of each other. Dynes v. Hoover, 20 How. 65; In re Robert D. Bogart, 2 Saw. 396.


(0) When it is said that Congress shall have the power to call forth the militia for three purposes, it is clear that it is not a call by the States of their own militia. Kneedler v. Lane, 45 Penn. 238; s. C. 3 Grant, 465.

The power to call the militia into service is limited by express terms. It reaches only three cases. The call may be made "to execute the laws of the Union, to suppress insurrections, and to repel invasions," and for no other uses. The militia can not be summoned for the invasion of a country without the limits of the United States. They can not be employed therefore to execute treaties of offensive alliance, nor in any case where military power is needed abroad to enforce rights necessarily sought in foreign lands. Kneedler v. Lane, 45 Penn. 238; S. c. 3 Grant, 465, 523.

Congress may lawfully provide for cases of imminent danger of invasion, as well as for cases where an invasion has actually taken place, for the power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel invasion is to provide the requisite force for action before the invader himself has reached the soil. Martin v. Mott, 12 Wheat. 19.

By virtue of this power Congress may make laws to enforce the call; may inflict penalties for disobedience, and erect courts for trial of offenders. Comm. v. Irish, 3 S. & R. 176, note.

Congress may by law fix the period at which the militia, called forth by the president, enter into the service of the United States, and change their character from State to national militia. This is included in the more extensive powers of calling forth the militia, organizing, arming, disciplining and governing them. Houston v. Moore, 5 Wheat. I ; S. C. 3 S. & R. 169.

The authority to call forth the militia to execute the laws of the Union,

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