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States, yet that question is one for Congress termined by the Constitution, McCormick itself to consider. (1860) 9 Op. Atty. Gen. V. Humphrey (1866), 27 Ind. 144. 517. ICS. p. 13,498.)
Since Congress bas the constitutional Insurrection or rebellion constituting power to declare war, it follows that conwar.-No formal declaration of war by the gress must possess the choice of means, President, in the case of the War of the and must be empowered to use any means Rebellion, was necessary to render lawful which are, in fact, conducive to the exercise the means adopted by him to repel the of the constitutional grant of power. Id. karlike measures of the enemy. The Hia- The law of nations imposes only the watha (D. C. 1861), Fed. Cas. No. 6,451.
the war power of the United The late insurrection of the Southern States, and there is no difference in this States did not become a civil war until respect between a foreign and a civil war. after the proclamation of President Lin- Knoefel 4. Williams (1868), 30 Ind. 1. coln, issued Aug. 16, 1861, pursuant to act Assuming that a conscript by furnishing of July 13, 1861, placing the inhabitants a substitute, as authorized by act of Apr. of the Southern States in a state of insur- 16, 1862, made a contract with the Gov. rection. Perkins 1. Rogers (1871), 35 Ind. ernment, the latter, under the power to de 124, 9 Am. Rep. 639; (C. S. p. 13,499). clare war and raise and support armies,
Exercise of war powers. -By virtue of its may annul such contract without making power to make war and suppress insurrec- any compensation ; exemption from military tion, the Government has the right to service not being property, but a mere transport troops to all parts of the Union personal privilege. Gatlin Waltop by the usual and most expeditious mode, (1864), 60 N. C. 325, 1 Winst. 333. and a State tax on passengers carried out
Martial law.-Martial law can not susof the State is void as an interference
pend the Constitution as the guardian of therewith. Crandall 1. Nevada (1867), 6 the person and property of a private citi. Wall. 35, 44, 18 L. Ed. 745.
zen who is not an enemy to the Government, ('nder its power to declare war, Congress and has been guilty of no hostile act. Cormay carry on war and collect revenue for
bin 1. Marsh (1865), 63 Ky. (2 Duv.) 193. that purpose. The Legal Tender Cases Martial law is limited to the theater of (1870), 12 Wall. 457, 540, 20 L. Ed, 287.
active military operations, where do civil As incident to the power of making war, authority remains, and there is a necessity the National Government has the power to to furnish a substitute to preserve the bury the dead who bave fallen in battle safety of the Army and society; and marand to appropriate for this purpose such
tial rule can only prevail until the laws lands for national cemeteries as are neces- can have their free course. McLaughlin 1. sary to hold such burial places and pro- Green (1874), 50 Miss. 453. tert them from desecratiop. (1869) 13
See Ex parte Vallandigham (C. C. 1863), Op. Atty. Gen, 131,
Fed. Cas. No. 16,816. When Congress declares war, by that deciaration it puts in force the laws of
Acquisition and government of territory,
The Government possesses the power of war, and the war powers of the Government which are not to be exercised, under
acquiring territory by conquest.
American the Constitution, in . time of peace,
Ins. Co. 7. Canter (1898), 1 Pet. 511, 542, 7
come into full force by virtue of the Copstitu
1. Ed. 242; Pollard v. Kibbe (1840), 14 Pet. tion, and are to be exerted by the Presi
353, 392, 10 L. Ed. 490. dent and Congress. After the declaration The power to declare war is conferred of war, every act done in carrying on the on Congress to enable the General Governwar is an act done by virtue of the Con. ment to vindicate by arms its own rights stitntion, which authorized the war to be and the rights of its citizens, and a war commenced.
Every measure of Congres?, declared by Congress is not presumed to be and every Executive act performed by the waged for conquest, and the boundaries of President, intended and calculated to carry the United States may only be extended by the war to a successful issue, are acts done the treaty-making power or legislative auunder the Constitution, whether the act or thority. Fleming v. Page (1850), 9 How. the measure be for the raising of money to 603, 614, 13 L. Ed. 276. support armies, or a declaration of free
A military occupation which will give the dom to fill their ranks and weaken the right to exercise governmental authority is enemy, wbether it be the organization of
not merely an invasion, but is an invasion military tribunals to try traitors, or the
plus possession of the enemy's country for destruction of their property by the ad
the purpose of holding it temporarily, at vanciug army, without due process of law, least. Macleod r. U. S. (1913), 33 Sup. and the validity of such acts must be de
Ct. 955, 229 V. S. 416, 57 L. Ed. 1260.
The power conferred on the Government to make war and treaties implies the power to acquire territory, either by conquest or treaty; and the power to govern such territory until it is fit to be admitted into the Union as a State results from the acquisition thereof, Nelson v. U. S. (C. C. 1887), 30 Fed. 112, allirming (D. C. 1886), 29 Fed. 202,
The power to acquire additional territory rests on the power to declare war. Ex parte Ortiz (C. C. 1900), 100 Fed. 955, 958.
Government established in a conquered territory by the orders of the military power occupying the same endures while the occupation continues, and ends with the restoration of peace and the resumption of the regular civil municipal Government. Isbell v. Farris (1868), 45 Tenn. (5 Cold.) 426.
Captures on land and water.--Enemy property found here, on land, at the commencement of hostilities, can not be condemned without a legislative act authorizing confiscation. The declaration of war is not such an act. Brown v. U. S. (1814), 8 Cranch, 110, 125, 126, 3 L. Ed. 504.
Captured and abandoned property act of Mar. 12, 1863, held within the power to "make regulations concerning captures on land and water." Haycraft v. U. S. (1874), 22 Wall. 81, 94, 22 L. Ed. 738.
Seizure and confiscation of property.--A military commander, under circumstances of actual, urgent, immediate, and pressing public necessity may take private property. Harmony 1'. Mitchell (C. C. 1850), Fed. Cas. No. 6,082; Holmes v. Sheridan (C. C. 1870), Fed. Cas. No. 6,644,
The mere declaration of war does not confiscate enemy property or debts due to an enemy, nor does it so vest tbe property or the debts in the Government, as to support judicial proceedings for the contiscation of the property or debts, without expression of the will of the Government, through its proper department, to that effect.
Under the Constitution of the United States, the power of confiscating enemy property and debts due to an enemy is in Congress alone. Britton 1. Butler (C. C. 1872), Fed. Cas. No. 1,903.
The l'nited States may take and use real estate during war for war purposes, but may not, by any summary proceeding, divest the title of the owner, nor the power to retain possession beyond the period during which the occasion for the taking con. tinued. (1896), 21 Op. Atty. Gen. 382.
If the provisions of the contiscation act of July 17, 1862, are unconstitutional and void, it seems clear that Congress has no power to prohibit the State courts from giving to the owners the relief to which they are entitled by the laws of the States, Vorris 0, Donipban (1863), 61 Ky. (4 Metc.) 385.
The right given by the Constitution to make war upon rebels gives the power to perform acts of war, and no other power whatever, and the seizure and confiscation of enemy's property on land are not acts of war. Id.
The seizure and sale of property does not pass title unless warranted by the usages of war, but Const. Mo. art. 11, sec. 4, protecting officers from prosecutions for unlawful seizures made during tbe Rebel. lion, is valid, Williamson Russell (1872), 49 Mo. 185. [C. S. p. 13,501.)
2835. Declaration of a state of war with Germany. That the state of war between the United States and the Imperial German Government which has thus been thrust upon the United States is hereby formally declared; and that the President be, and he is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Govern. ment to carry on war against the Imperial German Government; and to bring the conflict to a successful termination all of the resources of the country are hereby pledged by the Congress of the United States. Joint Res. 1, Apr. 6, 1917 (40 Stat. 1).
That in the interpretation of any provision relating to the duration or date of the termination of the present war or of the present or existing emergency, meaning thereby the war between the Imperial German Government and the Imperial and Royal Austro-Hungarian Government and the Government and people of the United States, in any Acts of Congress, joint resolutions, or proclamations of the President containing provisions contingent upon the duration or the date of the termination of such war or of such present or existing emergency, the date when this resolution becomes effective shall be construed and treated as the date of the termination of the war or of the present or existing emergency, notwithstanding any provision in any Act of Congress or joint resolution providing any other mode of determining the date of such termination. And any Act of Congress, or any provision of any such Act, that by its ternis is in force only during the existence of a state of war, or during such state of war and a limited period of tine thereafter, shall be construed and administered as if such war between the Governments and people afore said terminated on the date when this resolution becomes effective, any provi: sion of such law to the contrary notwithstanding; excepting, however, from the operation and effect of this resolution the following Acts and proclamations, to wit: Title 2 of the Act entitled “The Food Control and District of Columbia Rents Act," approved October 22, 1919 (Forty-first Statutes, page 297), the Act known as the Trading with the Enemy Act, approved October 6, 1917 (Fortieth Statutes, page 411), and all amendments thereto, and the First, Second, Third, and Fourth Liberty Bond Acts, the Supplement to the Second Liberty Lond Act, and the Victory Liberty Loan Act; titles 1 and 3 of the War Finance Corporation Act (Fortieth Statutes, page 506) as amended by the Act approved March 3, 1919 (Fortieth Statutes, page 1313), and Public Resolution Numbered 55, Sixty-sixth Congress, entitled “ Joint resolution directing the War Finance Corporation to take certain action for the relief of the present depression in the agricultural sections of the country, and for other purposes,” passed January 4, 1921; also the proclamations issued under the authority conferred by the Acts herein excepted from the effect and operation of this resolution :
Nothing herein contained shall be held to exempt from prosecution or to relieve from punishment any offense heretofore committed in violation of any Act hereby repealed or which may be comunitted while it remains in force as herein provided. Joint Res. 64, March 3, 1921 (41 Stat, 1359-1360).
Notes of Decisions.
Construction. In an opinion of April 11, act of July 9, 1918 (40 Stat. 885); sec. 5, 1921. the Attorney General held that the act of Oct. 6, 1917 (40 Stat. 383) ; sec. following acts, inter alia, are affected by 213(8), act of Feb. 24, 1919 (40 Stat. the above resolution "and that the same 1066) ; sec. 204, war risk insurance act come within its intended purpose of re. of Oct. 6, 1917 (40 Stat. 403). (For the storing the internal affairs of the United sections of this book in which the above States to a peace-time basis," namely: Sec. provisions may
be found, see Table of 16, act of May 22, 1917 (40 Stat. 87); Citations, post, p. 1507),
2836. Declaration of a state of war with Austria-Hungary.--That a state of War is hereby declared to exist between the United States of America and the Imperial and Royal Austro-Hungarian Government; and that the President be. and he is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to Curry on war against the Imperial and Royal Austro-Hungarian Government; and to bring the conflict to a successful termination all the resources of the country are hereby pledged by the Congress of the United States. Joint Res. 17, Dec. 7, 1017 (10 Siat, 429).
Caval Zone, 2838.
Partial invalidity, 2840.
lociting rebellion or insurrection, 2848. Seditious conspiracy, 2819.
Destruction of property :
Obtaining unlawful information, 2933.
eign government, 2836.
disloyalty, etc., 2857.
2837. United States defined. The term “United States " as used in this Act includes the Canal Zone and all territory and waters, continental or insular, subject to the jurisdiction of the United States. Sec. 1, title XIII, act of June 15, 1917 (40 stat. 231).
2838. Jurisdiction in the Philippine Islands and the Canal Zone.-The several courts of first instance in the Philippine Islands and the district court of the Canal Zone shall have jurisdiction of offenses under this Act committed within their respective districts, and concurrent jurisdiction with the district courts of the United States of offenses under this Act committed upon the high seas, and of conspiracies to commit such offenses, as defined by section thirty-seven of the Act entitled "An Act to codify, revise, and amend the penal laws of the United States," approved March fourth, nineteen hundred and nine, and the provisions of said section, for the purpose of this Act, are hereby extended to the Philippine Islands, and to the Canal Zone. In such cases the district attorneys of the Philippine Islands and of the Canal Zone shall have the powers and perform the duties provided in this Act for United States attorneys. Sec. 2, title XIII, act of June 15, 1917 (40 Stat. 231).
Sec. 37, act of Mar, 4, 1909 (35 Stat. 1096), establishes the penalty for a conspirator or conspirators attempting to defraud the United States.
2839. Prosecution of offenses.--Offenses committed and penalties, forfeitures, or liabilities incurred prior to the taking effect hereof under any law embraced in or changed, modified, or repealed by any chapter of this Act may be prosecuted and punished, and suits and proceedings for causes arising or acts done or
committed prior to the taking effect hereof may be commenced and prosecuted, in the same manner and with the same effect as if this Act had not been passed. Sec. 3, title XIII, act of June 15, 1917 (40 Stat. 231).
2840. Partial invalidity of the Espionage Act.-If any clause, sentence, paragraph, or part of this Act shall for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which such judgment shall have been rendered. Sec. 4, title XIII, act of June 15, 1917 (40 stat. 231).
2841. Treason defined.--Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason. Sec. 1, Criminal Code, act of March 4, 1909 (35 Stat, 1088).
Notes of Decisions.
Definition.-- For definition and discussion
prevent the execution of a law in a parof treason, see U. S. v. Werner (D. C. ticular instance, and then to disperse, 1918), 217 Fed. 708.
without any intention of continuing toTo constitute a levying of war, there gether or reassembling for defeating the must be an assemblage of persons for the law generally and in all cases, is not a purpose of effecting by force a treasonable
levying of war such as constitutes trea. purpose. Enlistment of
to serve son, Charge to Grand Jury, Fugitive Slave against Government is not suficient. Law (C. C. 1851), Fed. Cas. No, 18,262; When war is levied, all those who per- Charge to Grand Jury, Treason (D. C. form any part, however minute, or how- 1863), Fed. Cas. No. 18,274. ever remote from the scene of action, The combination of a body of men,
with and who are actually leagued in the
the design of seizing, and the actual seizgeneral conspiracy, are traitors, Any as- ing, of the forts and other public property semblage of men for the purpose of levo- of the United States, is a levying of war lutionizing by force the Government estab
against the United States, and is treason, lished by the United States in any of its Charge to Grand Jury, Treason (C. C. Territories, although as a step to, or the 1861), Fed, Cas. No. 18,270; Id. (D. C. means of executing some greater projects, 1863), 18,274. amounts to levying war. The traveling of A combination to suppress the excise individuals to the place of rendezvous is officers of the Government, and prevent the not sufficient; but the meeting of particu
execution of an act of Congress, accom. lar bodies of men, and their marching from
panied by a display of force, consisting places of partial, to a place of general, of a number of men arrayed in a military rendezvous, is such an assemblage as consti
manner, and with arms, and by acts of tutes a levying of war. Ex parte Bollman
violence, for the purpose of compelling an (1807), 4 Cranck, 75, 125, 2 L. Ed. 554.
excise officer to resign his commission, is a A conspiracy to prevent by force, the
levying of war, and constitutes treason. execution of any one law of the Cnited
U. S. 1. Mitchell (C. C. 1795), Fed. ('as. States in all cases, is a treasonable con.
No, 15,788, 2 Dall. 348, 1 L. Ed. 410; Same spiracy; and if there be an actual assem
v. Vigol (C. C. 1795), Fed. Cas. No. 16,621, bage of men for the purpose of carrying 2 Dall. 346, 1 L. Ed. 409. this intention into effect-that is, of acting
To go, with a large party, in arms, mar. together, and preventing by force the exe
shaled and arrayed, to the houses of officers cution of the law generally--this consti
of the excise, and there commit acts of viotutes a levying of war, and involves the
lence and devastation, with the avowed obcrime of treason. Charge to Grand Jury,
ject of suppressing such offices, and comTreason (C. C. 1842), Fed. Cas. No.
pelling the resignation of the officers for 19,275; Charge to Grand Jury, Fugitive
the purpose of nullifying an act of ConSlave Law (C. C. 1851), Fed. Cas. No.
gress, is treason. Id, 18,202; Charge to Grand Jury, Treason
Opposing, by force of arms, an act of (1), C. 1563), Fed. Cas. No. 18,274.
Congress, with a view to defeating itsgefliThe sudden outbreak of a mob, or the
cacy, and thus defying the authority of asarinbling of men, in order, by force, to
the Government is levying war against the