Page images
PDF
EPUB

ment can exercise any power not expressly conferred on it by the Constitution of the United States, or necessary to give effect to granted powers; all others are reserved to the states respectively, or to the people. In the second article, second section of the Constitution of the United States, is this provision: 'The President shall be commander-inchief of the army and navy of the United States, and of the militia of the several states, when t ailed into the actual service of the United States.'

"In the war with Mexico, declared by Congress to exist by the act of Mexico (see 9 Statutes at Large, page 9), the Supreme Court have maintained, in two cases, that the President, without any act of Congress, as commander-in-chief of the army and navy, could exert the belligerent right of levying contributions on the enemy, to annoy and weaken him. In the case of Fleming et al. vs. Page (9 Howard, 615), the present Chief-Justice says: 'As commander-in-chief he is authorized to direct the movements of the naval and military forces, placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy.' Again, at page 616: 'The person who acted in the character of collector, in this instance, acted as such, under the authority of the military commander, and in obedience to his orders, and the duties he exacted, and the regulations he adopted, were not those prescribed by law, but by the President, in his character of commander-in-chief. The custom-house was established in an enemy's country as one of the weapons of war. It was established, not for the purpose of giving the people of Tamaulipas the benefit of commerce with the United States, or with other conntries, but as a measure of hostility, and as a part of the military operations in Mexico; it was a mode of exacting contributions from the enemy to support our army, and intended also to cripple the resources of Mexico, and make it feel the evils and the burdens of the war. The duties required to be paid, were regulated with this view, and were nothing more than contributions levied upon the enemy, which the usages of war justify, when an army is operating in the enemy's country.'

"The other case to which I allude is Cross et al. vs. Harrison (16 Howard, 189, 190). Judge Wayne in delivering the opinion of the Supreme Court, says: 'Indeed, from the letter of the secretary of state, and from that of the secretary of the treasury, we cannot doubt that the action of the military governor of California was recognized as allowable and lawful by Mr. Polk and his cabinet. We think it was a rightful and correct recognition under all the circumstances, and when we say rightful we mean that it was constitutional, although Congress had not passed an act to extend the collection of tonnage and import duties to the ports of California. California, or the port of San Francisco, had been conquered by the arms of the United States as early as 1846. Shortly afterward, the United States had military possession of all the Upper California. Early in 1847 the President, as constitutional-commander-in-chief of the army and navy, authorized the military and naval commanders of our forces in California, to exercise the belligerent rights of a conqueror, and to form a civil government for the conquered country, and to im. pose duties on imports and tonnage as military contributions for the support of the government and of the army, which had the conquest in possession, &c. No one can doubt that these orders of the President, and the action of our army and navy commanders in California, in conformity with them, was according to the law of arms,' <fcc. (See also pages 191, 193, 195, 196, 201.)

"Blockade is a belligerent right under the law of nations where war exists, and is as clearly denned as the belligerent right to levy contributions in the enemy's country. As the Supreme Court hold the latter power to be constitutionally in the President, without an act of Congress, as commander-in-chief of the army and navy, it follows necessarily that the power of blockade also resides with him; indeed it would seem a clearer right, if possible, because, as chief of the navy nobody can doubt the right of its commander to order a fleet or a ship to capture an enemy's vessel at sea, or to bombard a fortress on shore, and it is only another mode of assault and injury to the same enemy, to shut up his harbors, and close his trade, by the same ship or fleet. The same weapons are used. The commander only varies the mode of attack.

"In the 1st article, § 8, clause 11, of the Constitution, under the legislative head, power is granted to Congress 'to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.'* These powers are therefore solely confided to and within the control of the legislature, and cannot be exercised by the President. The President cannot declare war, grant letters of marque, &c., though all other belligerent rights, arising out of a state of war, are vested in him as commander-in-chief of the army and navy.

"But, war declared by Congress, is not the only war within the contemplation of the Constitution. In clause 15, art. 1, § 8, among the legislative powers is this: 'to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,' and the legislature, in execution of this power, passed the act of 1795 (1 Statutes at Large, 424), vesting in the President, under the terms set forth in the statute, discretionary power over the militia, in the cases enumerated in the 15th clause of § 8, article 1. The status of foreign nations whose provinces or dependencies are in revolution, foreign invasion of our own country, and insurrection at home, are political questions, determinable by the executive branch of our government. I refer on this subject to the following cases in the Supreme Court of the United States. The Santissima Trinidad (7 Wheaton, 305):

'"This court has repeatedly decided that it will not undertake to determine who are sovereign states, but will leave that question to be settled by the other departments who are charged with the external affairs of the country, and the relations of peace and war. It may, however, be said, that both the judiciary and the Executive have concurred in affirming the sovereignty of the Spanish colonies now in revolt against the mother country. But the obvious answer" to this objection is, that the court, following the executive department, have merely declared the notorious fact, that a civil war exists between Spain and her American provinces, and this, so far from affirming, is a denial of the sovereignty of the latter. It would be a public and not a civil war if they were sovereign states. The very object of the contest is to decide whether they shall be sovereign and independent or not; all that the court has affirmed is that the existence of this civil war gave to both, parties all the rights of war against each other.'

"In cases of invasion by a foreign power or insurrection at home, in which cases, under the act of 1795, the President may call out the militia, the Supreme Court, in 12 Wheaton (case of Martin vs. Mott), pages 29, 30, says it is exclusively with the President to decide whether the exigencies provided for have arisen. These also are political questions, determinable by the Executive alone, and the courts follow that branch of the government. In this case, at page 32, the Supreme Court says: 'It is no answer that such a power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the Constitution itself.'

"Whether insurrection has grown to such a head, has become so formidable in power, as to have culminated in civil war, it seems to me must also belong, as to its decision, to the same political branch of the government. The President, in his proclamation relating to the blockade of the ports of the Confederate States, calling out seventy-five thousand militia to suppress insurrection, and the resistance to the Federal laws, alleges 'that nine states have so resisted,' and have 'threatened to issue letters of marque to authorize the bearers thereof to commit assaults against the vessels, property, and lives

« PreviousContinue »