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And, again: Congress must possess the choice of means and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution.

POWER OF CONGRESS. In a proceeding brought to condemn certain lands for park purposes (U. S. v. Gettysburg Electric Railway Co., 160 U. S.; 668) the Supreme Court went to an unusual length in defining the war power of Congress, saying:

Congress has power to declare war and to create and equip navies. It has the great power of taxation to be exercised for the common defense and general welfare. Having such powers, it has such other and implied ones as are necessary and appropriate for carrying the powers expressly given into effect. Any act of Congress which plainly and directly tends to enhance the respect and love of the citizen for the institutions of his country and to quicken and strengthen his motives to defend them, and which is germane to and intimately connected with and appropriate to the exercise of some one or all of the powers granted by Congress, must be valid.

The question of the war power of Congress was the storm center of discussion before, during, and since the convention which framed the Constitution, and we are not left to grope in the dark as to the history of its origin and purposes. Whether we look to contemporaneous discussion, or to subsequent interpretation, we inevitably reach the conclusion that the power intended to be conferred upon Congress when war has been declared is almost limitless, reaching out across and, in emergency, obliterating State lines. It is essential, or, in emergency, might become essential to the very maintenance of our form of government and to perpetuate the liberties which we have received as an heritage from the fathers of the Republic.

The man or men who seriously question that power in what to me seems the most serious crisis in our country's history but lend their influence to our enemies by paralyzing the good right arm of the Commander in Chief of the Army and Navy.

In this connection, as a part of the contemporaneous history of the constitutional provisions under discussion, I can not resist the temptation to quote from papers of Hamilton and Madison in the Federalist on this subject.

The former said:

ALEXANDER HAMILTON'S VIEWS. The authorities essential to the common defense are these: To raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exi. gencies or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances, and ought to be under the direction of the same councils which are appointed to preside over the common defense.

This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it and may be obscured, but can not be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the means ought to be proportioned to the end; the persons from whose agency the attain. ment of any end is expected, ought to possess the means by which it is to be attained.

Whether there ought to be a Federal Government intrusted with the care of the common defense is a question in the first instance open for discussion; but the moment it is decided in the affirmative it will follow that that government ought to be clothed with all the powers requisite to complete execution of its trust, and unless it can be shown that the circumstances which may affect the public safety are reducible

within certain determinate limits, unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficacy; that is, in any matter essential to the formation, direction, or support of the national forces. (The Federalist, No. 23, pp. 152, 153, edition of Central Law Journal Co., 1914.)

JAMES MADISON'S VIEWS. Madison, discussing the same subject, said:

Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous therefore to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form.

Is the power of raising armies and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defense.

But was it necessary to give an indefinite power of raising troops, as well as providing fleets, and of maintaining both in peace as well as in war?

The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. The answer, indeed, seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force necessary for defense be limited by those who can not limit the force of offense? If a Federal Constitution could chain the ambi. tion or set bounds to the exertions of all other nations, then, indeed, it might prudently chain the discretion of its own Government and set bounds to the exertions for its own safety.

How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. (The Federalist, No. 41, pp. 275, 276, edition of Central Law Journal Co., 1914.)


The present world conflict justifies the argument of these distinguished statesmen as to the necessity of the greatest latitude necessary to be given the National Legislature in time of national peril. Could they have foreseen that America was, at this day and age, to become involved in a war where the civilized world is a participant, I doubt not they would have been even more insistent in urging the greatest possible congressional power in times of national danger.

In the Tarble case (13 Wall., 397) the court held: 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 drafts, 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. And it can provide the rules for the government and regulation of the forces after they are raised, define what constitutes military offenses, and prescribe their punishment.

And continuingNo interference with the execution of this power of the National Government in the formation, organization, and government of its armies by any State officials could be permitted without greatly impairing the efficiency of, if it did not utterly destroy, this branch of the public service.


I cite this last decision to sustain my insistence that under this war power of Congress, State lines in emergency yield to the necessities of war legislation.

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But, gentlemen of the Florida Bar Association, while I have confined myself to the citation of a few of the cases decided by the Supreme Court of the United States, I could, if time permitted and the occasion justified, direct your attention to innumerable decisions of the courts of last resort in many of the States growing out of controversies occasioned by the Civil War, notably, those to which the draft laws of the Congress of the United States and of the Confederate States gave rise. Some of these decisions, particularly those rendered by the courts of Virginia, Georgia, Alabama, and Texas, are characterized by the greatest learning and ability.' One and all sustain the position I take with reference to war power of Congress.

It may be asked, why discuss at this time two propositions which from my point of view are so well sustained by reason as well as by authority, as the right to draft men of military age into the service of the country, with plenary power on the part of Congress to maintain and support them when so called upon for service, and further to do all things necessary to the successful prosecution of the war in which our country is involved ?

I do it because the question has been raised as to the power of Congress to do either of these things so necessary to the preservation of our liberties. I do it because I believe that America is not yet aroused to the danger which confronts her on account of enemies without and within and in the hope that if the men of Florida have not yet considered these questions they may begin to do so and to discuss them.

I do it because America should have but one voice and one purpose in the war now being waged in order that, as our distinguished President has said, the world may be safe for democracy.


I know the thinking people are not being deceived by the efforts of German propagandists who are abroad claiming that this is not our war. If our rights upon land and sea are to be preserved; if tae lives of our citizens who dare exercise those rights and others guaranteed to them by the laws of nations are to be protected; if treaties are to be observed as solemn international obligations and not mere scraps of paper, then this is America's war. But if we care naught for these things; if we are willing to permit our citizens, men, women, and sucking babes, to be ruthlessly destror by ambushed assassins of the high seas; if we are willing in thi progressive day and generation to have the avenues of commerce closed against us without protest; if the spirit of America has become craven and we no longer proudly boast of a descent from a patriotic, a valiant, and a chivalrous ancestry; then indeed and then only, my friends, this is not our war.

The fate of the world may depend on the part America shall play in this war, and as an All-Wise Providence gave to her the glory of establishing a government bottomed on the consent of the governed in this new world of ours, so it may be, if her sons play their part now, as did her sons of Colonial days, that same beneficent Providence may make America the bearer of a message to all the nations of the earth when this war is over, that the world is and shall be safe for dennocracy until the end of time.

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JULY 30, 1917.-Referred to the Committee on Printing



Reported by Mr. Fletcher.


September 11, 1917. Resolved, That the pamphlet submitted by the Senator from Florida (Mr. Fletcher), on July 30, 1917, entitled “The World Conflict in its Relation to American Democracy,” an address by Walter Lippmann, be printed as a Senate document. Attest:

JAMES M. BAKER, Secretary.

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