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CONSTITUTIONAL SOURCES OF

THE LAWS OF WAR

ARTICLE

ON

THE CONSTITUTIONAL SOURCES OF

THE LAWS OF WAR

BY

HORACE L. B. ATKISSON

PRESENTED BY MR. FLETCHER
JUNE 9, 1917.-Referred to the Committee on Printing

WASHINGTON
GOVERNMENT PRINTING OFFICE

SENATE RESOLUTION NO. 100..

(REPORTED BY MR. FLETCHER.)

IN THE SENATE OF THE UNITED STATES,

September 11, 1917. Resolved, That the manuscript submitted by the Senator from Florida (Mr. Fletcher) on June 9, 1917, entitled “Constitutional Sources of the Laws of War," by Horace L. B. Atkisson, of the Washington, D. C., bar, be printed as a Senate document. Attest:

JAMES M. BAKER,

Secretary.

ܕ •

ANALYTICAL TABLE OF CONTENTS.

POWERS OF CONGRESS.

Page. As to PIRACIES, AND OFFENSES AGAINST Law of Nations—Protection to com

merce-Definitions of offenses-Offenses on vessel held by pirates: By foreigner on foreign ship_Counterfeiting foreign money and securities-State jurisdiction..

5 As to WAR, PRIVATEERING, AND CAPTURES—Plenary, power of Congress

Exclusive power of Congress to declare war or conclude peace-Effect of declaration of war-Rights of action between citizens of belligerents-To acquire territory-Rules of public law applicable to civil war-Power to repel invasions and declare war against a StateTo seize property for war purposes-To confiscate enemy property-Right to prize money-Permitting partial intercourse with the enemy-To establish military tribunals to try civilians Limitations of actions_Court-martial for assassins of President-State tax on passengers..

7 To RAISE AND SUPPORT ARMIES—No appropriation for longer than two years

Increase and reduction of the Army-Power of conscription-Regulations as to enlistment-Enlistment of unions--Right to appoint officers Power to prevent evasion of military duty.

13 TO PROVIDE AND MAINTAIN A Navy-As to RULES FOR ARMY AND Navy

TO PROVIDE FOR CALLING FORTH THE MILITIA—TO PROVIDE FOR ORGAN-
IZING AND GOVERNING MILITIA..

16-21

POWER OF PRESIDENT.

Relation to authority of British Crown-To establish Army regulations-Rep

resented by superior officer in command-Effect of military occupationExtension of territory and operation of laws-Establishment of provisional government—Establishment of provisional court-Power to convene courtsmartial—To court-martial or detain civilians-To repel invasion and suppress insurrection—To accord belligerent rights to insurgents To employ secret agents—When Commander in Chief of militia-Appointment of Army officers - Appointment of Regular Army officers to service in militia-Ad

mission of merchandise from conquered territory—“Departments" TRIAL BY JURY-WHEN INDICTMENT OR PRESENTMENT BY GRAND JURY NOT

INDISPENSABLE.... QUARTERING SOLDIERS.

23

28 29

TREASON.

Power of Congress limited— Constitutional definition of treason-Statutory

origin of definition-"Levying war"—Who are “enemies"?-What constitutes giving aid and comfort-Constructive treasons Who may be guilty of treason--Accessories-Evidence required for conviction-Proof of intentPunishment prescribed by the Constitution-Jurisdiction of State courts....

30

HABEAS CORPUS.

By whom privilege of writ may be suspended-Power of Congress Authority of President-Scope of power-Protection of officers making arrests-Writs issued by State courts...

35

CONSTITUTIONAL SOURCES OF THE LAWS OF WAR.

BY HORACE L. B. ATKISSON,

OF THE WASHINGTON, D. C., BAR.

POWERS OF CONGRESS.

“The Congress shall have power

to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." (Art. 1, sec. 8, clause 10.)

This is one of the clauses of the Constitution that give to Congress authority to protect the commerce of the United States. Congress is vested in express terms with power to regulate commerce, and to make all laws proper and necessary to carry that power into effect, to the extent of giving full protection thereto by its criminal jurisprudence.

Charge to Grand Jury, 2 Sprague (U. S.), 279; 30 Fed. Cas. No. 18256. Piracy is universally understood in the law of nations as robbery or a forcible depredation on the high seas, animo furandi. It is the same offense at sea with robbery on land.

1 Kent, 183; 4 Blackstone, 71, 73. A statute for the punishment of piracy, “as defined by the law of nations," is sufficient without further definition.

U. S. v. Smith, 5 Wheaton, 153; U. S. v. Brig Malek Adhel, 2 Howard, 210 While Congress is given power to define and punish, it is not necessary, in order to make a valid statute, that upon the face of the statute it name the acts denounced as offenses against the law of nations. It is enough if the statute describes the act, and denounces it with punishment, and that the act in its nature comes within the scope of international obligations.

U. S. v. White, 27 Fed. Rep., 203. The manifest purpose of this provision is to empower Congress to provide for the punishment as crimes of all such infamous acts committed on the high seas as constitute offenses against the United States or against all nations.

1 Kent, 188. An act of Congress providing "that if any person or persons whatsoever shall, upon the high seas commit the crime of piracy as defined by the law of nations, and such offender or offenders shall be brought into or found in the United States, every such offender or offenders shall, upon conviction thereof, etc., be punished with death,” is not unconstitutional in leaving the offense to be defined by the law of nations.

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