States, yet that question is one for Congress itself to consider. (1860) 9 Op. Atty. Gen. 517. [C. S. p. 13,498.] Insurrection or rebellion constituting war. No formal declaration of war by the President, in the case of the War of the Rebellion, was necessary to render lawful the means adopted by him to repel the warlike measures of the enemy. The Hiawatha (D. C. 1861), Fed. Cas. No. 6,451. The late insurrection of the Southern States did not become a civil war until after the proclamation of President Lincoln, issued Aug. 16, 1861, pursuant to act of July 13, 1861, placing the inhabitants of the Southern States in a state of insurrection. Perkins v. Rogers (1871), 35 Ind. 124, 9 Am. Rep. 639; [C. S. p. 13,499]. Exercise of war powers.-By virtue of its power to make war and suppress insurrection, the Government has the right to transport troops to all parts of the Union by the usual and most expeditious mode, and a State tax on passengers carried out of the State is void as an interference therewith. Crandall . Nevada (1867), 6 Wall. 35, 44, 18 L. Ed. 745. Under its power to declare war, Congress may carry on war and collect revenue for that purpose. The Legal Tender Cases (1870), 12 Wall. 457, 546, 20 L. Ed. 287. As incident to the power of making war, the National Government has the power to bury the dead who have fallen in battle and to appropriate for this purpose such lands for national cemeteries as are necessary to hold such burial places and protect them from desecration. (1869) 13 Op. Atty. Gen. 131. When Congress declares war, by that deciaration it puts in force the laws of war, and the war powers of the Government which are not to be exercised, under the Constitution, in time of peace, come into full force by virtue c the Constitution, and are to be exerted by the President and Congress. After the declaration of war, every act done in carrying on the war is an act done by virtue of the Con. stitution, which authorized the war to be commenced. Every measure of Congress, and every Executive act performed by the President, intended and calculated to carry the war to a successful issue, are acts done under the Constitution, whether the act or the measure be for the raising of money to support armies, or a declaration of freedom to fill their ranks and weaken the enemy, whether it be the organization of military tribunals to try traitors, or the destruction of their property by the advancing army, without due process of law, and the validity of such acts must be de The law of nations imposes only the limit on the war power of the United States, and there is no difference in this respect between a foreign and a civil war. Knoefel v. Williams (1868), 30 Ind. 1. Assuming that a conscript by furnishing a substitute, as authorized by act of Apr. 16, 1862, made a contract with the Government, the latter, under the power to declare war and raise and support armies, may annul such contract without making any compensation; exemption from military service not being property, but a mere personal privilege. Gatlin V. Walton (1864), 60 N. C. 325, 1 Winst. 333. Martial law.-Martial law can not suspend the Constitution as the guardian of the person and property of a private citl zen who is not an enemy to the Government, and has been guilty of no hostile act. bin . Marsh (1865), 63 Ky. (2 Duv.) 193. Cor Martial law is limited to the theater of active military operations, where no civil authority remains, and there is a necessity to furnish a substitute to preserve the safety of the Army and society; and martial rule can only prevail until the laws can have their free course. McLaughlin v. Green (1874), 50 Miss. 453. See Ex parte Vallandigham (C. C. 1863), Fed. Cas. No. 16,816. Acquisition and government of territory.The Government possesses the power of acquiring territory by conquest. American Ins. Co. v. Canter (1828), 1 Pet. 511, 542, 7 L. Ed. 242; Pollard v. Kibbe (1840), 14 Pet. 353, 392, 10 L. Ed. 490. The power to declare war is conferred on Congress to enable the General Government to vindicate by arms its own rights and the rights of its citizens, and a war declared by Congress is not presumed to be waged for conquest, and the boundaries of the United States may only be extended by the treaty-making power or legislative authority. Fleming v. Page (1850), 9 How. 603, 614, 13 L. Ed. 276. A military occupation which will give the right to exercise governmental authority is not merely an invasion, but is an invasion plus possession of the enemy's country for the purpose of holding it temporarily, at least. Macleod . U. S. (1913), 33 Sup. Ct. 955, 229 U. S. 416, 57 L. Ed. 1260. 1 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, affirming (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 Jand 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 v. 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 the property or the debts in the Government, as to support judicial proceedings for the confiscation 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 v. Butler (C. C. 1872), Fed. Cas. No. 1,903. The United 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 continued. (1896), 21 Op. Atty. Gen. 382. If the provisions of the confiscation 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, Norris v. Doniphan (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 the Rebellion, is valid. Williamson v. 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 Government 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 terms is in force only during the existence of a state of war, or during such state of war and a limited period of time thereafter, shall be construed and administered as if such war between the Governments and people aforesaid 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 Bond 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 committed 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, 1921, the Attorney General held that the following acts, inter alia, are affected by the above resolution "and that the same come within its intended purpose of restoring the Internal affairs of the United States to a peace-time basis," namely: Sec. 16, act of May 22, 1917 (40 Stat. 87); act of July 9, 1918 (40 Stat. 885); sec. 5, act of Oct. 6, 1917 (40 Stat. 383); sec. 213 (8), act of Feb. 24, 1919 (40 Stat. 1066); sec. 204, war risk insurance act of Oct. 6, 1917 (40 Stat. 403). (For the sections of this book in which the above provisions may be found, see Table of 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 carry 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, 1917 (40 Stat. 429). 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. Code, act of March 4, 1909 (35 Stat. 1088). Sec. 1, Criminal Notes of Decisions. Definition. For definition and discussion of treason, see U. S. v. Werner (D. C. 1918), 247 Fed. 708. To constitute a levying of war, there must be an assemblage of persons for the purpose of effecting by force a treasonable purpose. Enlistment of men to serve against Government is not sufficient. When war is levied, all those who perform any part, however minute, or how ever remote from the scene of action, and who are actually leagued in the general conspiracy, are traitors. Any assemblage of men for the purpose of revolutionizing by force the Government established by the United States in any of its Territories, although as a step to, or the means of executing some greater projects, amounts to levying war. The traveling of individuals to the place of rendezvous is not sufficient; but the meeting of particular bodies of men, and their marching from places of partial, to a place of general, rendezvous, is such an assemblage as constitutes a levying of war. Ex parte Bollman (1807), 4 Cranch, 75, 125, 2 L. Ed. 554. A conspiracy to prevent by force, the execution of any one law of the United States in all cases, is a treasonable conspiracy; and if there be an actual assemblage of men for the purpose of carrying this intention into effect-that is, of acting together, and preventing by force the execution of the law generally-this constitutes a levying of war, and involves the crime of treason. Charge to Grand Jury, Treason (C. C. 1842), Fed. Cas. No. 18,275; Charge to Grand Jury, Fugitive Slave Law (C. C. 1851), Fed. Cas. No. 18,262; Charge to Grand Jury, Treason (D. C. 1863), Fed. Cas. No. 18,274. The sudden outbreak of a mob, or the assembling of men, in order, by force, to prevent the execution of a law in a particular instance, and then to disperse, without any intention of continuing together or reassembling for defeating the law generally and in all cases, is not a levying of war such as constitutes treason. Charge to Grand Jury, Fugitive Slave Law (C. C. 1851), Fed. Cas. No. 18,262; Charge to Grand Jury, Treason (D. C. 1863), Fed. Cas. No. 18,274. The combination of a body of men, with the design of seizing, and the actual seizing, of the forts and other public property of the United States, is a levying of war against the United States, and is treason. Charge to Grand Jury, Treason (C. C. 1861), Fed, Cas. No. 18,270; Id. (D. C. 1863), 18,274, A combination to suppress the excise officers of the Government, and prevent the execution of an act of Congress, accompanied by a display of force, consisting of a number of men arrayed in a military manner, and with arms, and by acts of violence, for the purpose of compelling an excise officer to resign his commission, is a levying of war, and constitutes treason. U. S. r. Mitchell (C. C. 1795), Fed. Cas. No. 15,788, 2 Dall. 348, 1 L. Ed. 410; Same v. Vigol (C. C. 1795), Fed. Cas. No. 16,621, 2 Dall. 346, 1 L. Ed. 409. To go, with a large party, in arms, marshaled and arrayed, to the houses of officers of the excise, and there commit acts of violence and devastation, with the avowed object of suppressing such offices, and compelling the resignation of the officers for the purpose of nullifying an act of Congress, is treason. Id. Opposing, by force of arms, an act of Congress, with a view to defeating its efficacy, and thus defying the authority of the Government is levying war against the |