"From its very nature, the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law. In the words of John Quincy Adams, -- 'This power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, property and of life.' To the end that war may not result in defeat, freedom of speech may, by act of Congress, be curtailed or denied so that the morale of the people and the spirit of the army may not be broken by seditious utterances; freedom of the press curtailed to preserve our military plans and movements from the knowledge of the enemy; deserters and spies put to death without .indictment or trial by jury; ships and supplies requisitioned; property of alien enemies, theretofore under the protection of the Constitution, seized without process and converted to the public use without compensation and without due process of law in the ordinary sense of that term; prices of food and other necessities of life fixed or regulated; railways taken over and operated by the government; and other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.". (United States v. Macintosh, 283 U.S. 605, 622, May 25, 1931.)

"While emergency does not create power, emergency may furnish the occasion for the exercise of power. 'Although an emergency may not call into life a power which has never lived, nevertheless emergency may afford a reason for the exertion of a living power already enjoyed.' Wilson v. New, 243 U.S. 332, 348. The constitutional question presented in the light of an emergency is whether the power possessed embraces the particular exercise of it in response to particular conditions. Thus, the war power of the Federal Government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties. When the provisions of the Constitution, in grant or restriction, are specific, so particularized as not to admit of construction, no question is presented. Thus, emergency would not permit a State to have more than two Senators in the. Congress, or permit the election of President by a general popular vote without regard to the number of electors to which the States are respectively entitled, or permit the State to 'coin money' or to 'make anything but gold and silver coin a tender in payment of debts.' But where constitutional grants and limitations of power are set forth in general clauses, which afford a broad outline, the process of construction is essential to fill in the details." (Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 426, Jan. 8, 1934.)

"The war power of the national government is 'the power to wage war successfully. *** It extends to every matter and activity so related to

war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war." (Hirabayashi v. United States, 320 U.S. 81, 93, June 21, 1943. See also Toyosaburo Korematsu v. United States, 140 F.2d 289, 290, Dec. 2, 1943, aff. 323 U.S. 214, Dec. 18, 1944.)

Power to acquire territory. - "The constitution of the United States/ confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty. The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed; either on the terms stipulated in the treaty of cession, or on such as its new master shall impose." (American Ins. Co. v. Canter, 1 Pet. 511, 542, Jan. Term, 1828. Accord: Stewart v. Kahn, 11 Wall. 493, 507, Dec. Term, 1870; Lyon, United States et al. v. Huckabee, 16 Wall. 414, 434, Dec. Term, 1872. See also: Fleming et al. v. Page, 9 How. 603, Jan. Term, 1850; Neeley v. Henkel, 180 U. S. 109, Jan. 14, 1901; Dooley v. United States, 182 U. S. 222, May 27, 1901.)

"A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's country. The United States, is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government for the expenses of the war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. As commanderin-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. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power." (Fleming et al. v. Page, supra, at 614-615.)

Power to make rules concerning captures.- "That the declaration of war has only the effect of placing : the two nations in a state of hostility, of producing a state of war, of giving those rights which war confers; but not of operating, by its own force, any of those results, such as a transfer of property, which are usually produced by ulterior measures of government, is fairly deducible from the enumeration of powers which accompanies that of declaring war. 'Congress shall have power' 'to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. ' It would be restraining this clause within narrower limits than the words themselves import, to say, that the power to make rules concerning captures on land and water,

Scope and operation of clause. - "Now, 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 draft, 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 shall constitute military offences, and prescribe their punishment. No 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, if it did not utterly destroy, this branch of the public service." (Tarble's Case, 13 Wall. 397, 408, Dec. Term, 1871.)

The grant to Congress of power to raise and support armies includes the power to compel military service. (Selective Draft Law Cases, 245 U. S. 366, Jan. 7, 1918. See also: United States v. Lambert, 123 F.2d 295, Nov. 10, 1941; Local Draft Board No. 1 of Silver Bow County, Montana, v. Connors, 124 F.2d 388, Dec. 13, 1941.)

"In express terms Congress is empowered 'to declare war, ' which necessarily connotes the plenary power to wage war with all the force necessary

to make it effective; and to raise * * * armies, which necessarily connotes the like power to say who shall serve in them and in what way. " (United States v. Macintosh, 283 U. S. 605, 622, May 25, 1931.)

"In virtue of its power to raise and support armies, to provide and maintain a navy and to make rules for the government of land and naval forces, the Congress may require military service of adults and minors alike. The power of the United States may be exerted to supersede parents' control and their right to have the services of minor sons who are wanted and fit for military service. And the Congress may confer upon minors the privilege of serving in land or naval forces, authorize them to enlist, or draft them upon such terms as it may deem expedient and just." (United States v. Williams, 302 U. S. 46, 48, Nov. 8, 1937.)

"The Constitution, by Article I, section 8, provides that the Congress shall have power 'To raise and support armies *** To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces.' This power to raise and support armies and provide and maintain a Navy is plenary and without limitation or restriction, and Congress is the sole judge of how the Army or Navy shall be raised and of what it shall be composed. It may create a marine corps or it may, in its wisdom, determine that no marine corps is requisite." (27 Op. Atty. Gen. 259-260, Apr. 5, 1909.)

CASE NOTES

Scope and operation of clause. "That a government which possesses the broad power of war; which 'may provide and maintain a navy;' which 'may make rules for the government and regulation of the land and naval forces,' has power to punish an offence committed by a marine on board a ship of war, wherever that ship may lie, is a proposition, never to be questioned in this court." (United States v. Bevans, 3 Wheat. 236, 390, Feb. 21, 1818.)

This clause "authorizes the government to buy or build any number of steam or other ships of war, to man, arm, and otherwise prepare them for war, and to dispatch them to any accessible port of the globe." (United States v. Rhodes, 27 Fed. Cas. 785, 792, No. 16, 151, 1866. See also United States v. Burlington & H. Co. Ferry Co., 21 F. 331, 340, June Term, 1884.)

"The constitution of the United States gives congress the power to raise and support armies, ' and 'to provide and maintain a navy,' and 'to make all laws which shall be necessary and proper' to execute these powers. The services of minors may be useful and important to the country, both in the army and the navy. ✶✶✶ Congress, therefore, have the power to enlist minors in the naval service, and the exercise of the power is justified by the soundest principles of national policy." (United States v. Stewart, 27 Fed. Cas. 1336, No. 16, 400, May, 1839.)

"The power to provide what persons may be appointed or enlisted in the naval service, the qualifications they must possess, and the total number of the entire force, is conferred by the clause authorizing the Congress 'to provide and maintain a Navy. '" (File 26260-1392, June 29, 1911, pp. 24-25.)

"Under its powers to raise and support armies', to provide and maintain a navy,' and to make rules for the government and regulation of the land and naval forces' (Constitution, Art. I, sec. 8), Congress may prescribe the qualifications of officers of the Army and Navy." (31 Op. Atty. Gen. 225, 227, Feb. 15, 1918.)

"In virtue of its power to raise and support armies, to provide and maintain a navy and to make rules for the government of land and naval forces, the Congress may require military service of adults and minors alike. The power of the United States may be exerted to supersede parents' control and their right to have the services of minor sons who are wanted and fit for military service. And the Congress may confer upon minors the privilege of serving in land or naval forces, authorize them to enlist, or draft them upon such terms as it may deem expedient and just." (United States v. Williams, 302 U.S. 46, 48, Nov. 8, 1937.)

EDITORIAL NOTES

Rules for the government of the naval forces of the United States are contained in sec. 1624, R. S., as amended, and related enactments cited thereunder.

Rules for the government of the land forces of the United States are contained in an act of June 4, 1920, ch. 227, subch. II, 41 Stat. 787-812, as amended.

CASE NOTES

In general.- "What we have already said sufficiently indicates our opinion that there is no law for the government of the citizens, the armies or the navy of the United States, within American jurisdiction, which is not contained in or derived from the Constitution. And wherever our army or navy may go beyond our territorial limits, neither can go beyond the authority of the President or the legislation of Congress." (Ex parte Milligan, 4 Wall. 2, 141, Dec. Term, 1866.)

"The notion suggested by Sir Matthew Hale, and repeated by Sir William Blackstone, *** that 'martial military law is built on no settled principles, but is entirely arbitrary in its decisions, and is, in truth, no law, but something indulged rather than allowed by law, '--is an exploded absurdity. A court martial is a lawful tribunal, existing by the same authority that any other court exists by, and the law military is a branch of law as valid as any other, and it differs from the general law of the land in authority only in this, that it applies to officers and soldiers of the army, but not to other members of the body politic, and that it is limited to breaches of military duty." (6 Op. Atty. Gen. 413, 425, Apr. 7, 1854.)

"There is the less room for the superficial remark of Sir Matthew Hale to be applied in the United States, inasmuch as the Constitution expressly empowers Congress 'to make (special) rules for the government of the land and naval forces; ' (Art. 1 8.9); and expressly excepts the trial of cases arising in the land or naval service from the ordinary provisions of law. (Amendments, art. 5.)" (6 Op.Atty. Gen., supra, at 425.)

"Armies, divisions, brigades, regiments, companies, guards, sentinels; fleets, squadrons, separate vessels, boats, crews, are land and naval forces, integrally and independently, no less than when compounded in the general mass, and so is the individual soldier and seaman." (United States v. Mackenzie et al., 30 Fed. Cas. 1160, 1164, No. 18,313.)

Rules for government of land and naval forces."The eighth section of Art. I of the Constitution provides that the Congress shall have power 'to make rules for the government and regulation of the land and naval forces,' and in the exercise of that power Congress has enacted rules for the regulation of the army known as the Articles of War. Rev. Stat. § 1342. Every officer, before he enters on the duties of his office, subscribes to these articles, and places himself within the power of courts martial to pass on any offence which he may have committed in contravention of them." (Carter v. Roberts, 177 U.S. 496, 497-498, Apr. 23, 1900. See also Carter v. McClaughry, 183 U.S. 365, 380-381, Jan. 6, 1902.)

The Congress is empowered by the Constitution, Art. I, sec. 8, cl. 14, to make rules for the government and regulation of the naval forces of the United States. (6 Op.Atty. Gen. 10, Apr. 5, 1853.)

Trial and punishment of offenders.- "That a government which possesses the broad power of war; which 'may provide and maintain a navy;' which 'may make rules for the government and regulation of the land and naval forces, has power to punish an offence committed by a marine on board a ship of war, wherever that ship may lie, is a proposition, never to be questioned in this court.". (United States v. Bevans, 3 Wheat. 336, 390, Feb. 21, 1818. See also United States v. Mackenzie et al., 30 Fed. Cas. 1160, No. 18, 313.)

"These provisions Art. I, sec. 8, of the Constitution; Art. II, sec. 2, of the Constitution; and the eighth amendment of the Constitution show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations; and that the power to do so is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other." (Dynes v. Hoover, 20 How. 65, 79, Dec. Term, 1857. See also: Ex parte Reed, 100 U.S. 13, 21, Oct. Term, 1879; Kahn v. Anderson, 255 U.S. 1, 8-9, Jan. 31, 1921; In re Bogart, 3 Fed. Cas. 796, 799, No. 1,596, Apr. 21, 1873; Ex parte Henderson, 11 Fed. Cas. 1067, 1075, No. 6,349, May 24, 1878; United States v. Maney, 61 F. 140, 143, May 28, 1894; United States v. Praeger, 149 F. 474, 484, Jan. 2, 1907; Ex parte Dickey, 204 F. 322, 325, Apr. 10, 1913.)

"Courts martial are lawful tribunals, with authority to finally determine any case over which they

have jurisdiction, and their proceedings, when confirmed as provided, are not open to review by the civil tribunals, except for the purpose of ascertaining whether the military court had jurisdiction of the person and subject-matter, and whether, though having such jurisdiction, it had exceeded its powers in the sentence pronounced." (Carter v. Roberts, 177 U.S. 496, 498, Apr. 23, 1900. See also: Carter v. McClaughry, 183 U.S. 365, 380-381, Jan. 6, 1902; Kirkman v. McClaughry, 152 F. 255, 259, Mar. 13, 1907.)

"Courts-martial are judicial tribunals, constituted by statutory authority, and organized in pursuance of statutory regulation, for the administration of a great and an important department of jurisprudence, the law-military. They are, therefore, in the strictest sense courts of justice, having jurisdiction of a large and, in some respects, distinct community of our fellow-citizens, and taking judicial cognizance of the duties and obligations which the citizen assumes when he enters by enlistment or otherwise, into the military service of the country." (11 Op. Atty. Gen. 137, 138, Jan. 3, 1865.)

"The discipline necessary to the efficiency of the army and navy, required other and swifter modes of trial than are furnished by the common law courts; and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offences committed while the party is in the military or naval service. Every one connected with these branches of the public service is amendable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts." (Ex parte Milligan, 4 Wall. 2, 123, Dec. Term, 1866.)

"It is not denied that the power to make rules for the government of the army and navy is a power to provide for trial and punishment by military courts without a jury.

It has been so understood and exercised from the adoption of the Constitution to the present time." (Ex parte Milligan, supra, at 137.)

"The Constitution gives Congress the power to provide and maintain a Navy and to make rules and regulations for the government of it. The power to make rules for the government of the Navy is a power to provide for trial and punishment by military courts without a jury. Neither the Fifth nor any other Amendment abridges this power." (In re Waidman, 42 F.2d 239, 240, July 11, 1930.)

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"It is provided by article 1, § 8 cl. 14, of the Constitution that Congress shall have the power 'To make Rules for the Government and Regulation of the land and naval Forces. This grant empowers Congress to provide for the trial and punishment of military and naval offenses ***, and it is the established rule that courts-martial thus authorized by Congress derive their validity from the foregoing provisions of the Constitution and are entirely independent of the judicial system authorized in article 3 of the Constitution. The civil courts may inquire only as to the jurisdiction of the military courts and should this be found lacking the proceedings may be declared a nullity, but the test is jurisdiction, and when the court-martial possesses this qualification its sentence is conclusive and beyond review for alleged errors occurring in the course of a trial." (Carter v. Woodring, 92 F.2d 544, 546, Aug. 2, 1937.)

"There are two general classes of punishments for military offenses. First, those which directly

affect the person or property of the offender, such as death, imprisonment, or dismissal; fines; the return or restoration of property or money wrongfully held, and the like. These are prescribed by law or established usage, and are imposed in the sentence itself. Second, certain disabilities, such as the deprivation of certain civil and political rights which persons otherwise similarly situated may have and enjoy - such as the rights of citizenship, the right to vote or to hold office, to be employed in the Government or to enlist or be appointed in the army, and the like. These are prescribed by law or established usage, but are not imposed by the sentence, and are rather consequences of a conviction." (27 Op.Atty. Gen. 178, 181-182, Feb. 17, 1909.)

Limitations on power of Congress.- "Nor does the fact that Congress is given power by the Constitution 'to make Rules for the Government and Regulation of the land and naval Forces' enable it to control the President's discretion in respect of those appointments which the same supreme law the Constitution, Art. II, sec. 2 requires him to make. The general power to regulate such forces can not be taken to nullify the specific mandate to the President to appoint to offices where Congress has made no other provision." (30 Op. Atty. Gen. 177, 180, June 23, 1913.)

Jurisdiction of civil courts over persons in armed forces.- "The military law, as it exists in the United States, and in Great Britain, from which country the substance of our jurisprudence was derived, is an exceptional code, applicable to a class of persons in given relations, but not abrogating or derogating from the general law of the land. By the general doctrine of American as well as of British law, an officer or soldier of the Army, who does an act which is criminal both by the military and by the general law, is subject to trial by the latter, in preference to the former, under certain conditions and limitations." (6.Op. Atty. Gen. 413, 414-415, Apr. 7, 1854.)

"The theory of the British articles of war is identical with ours, to wit, that officers and soldiers of the Army continue subject to the civil law, that the latter is to have the preference in the contingency of lawful competition of cause, and that the officer who commits a crime shall be punishable both as a citizen and as an officer of the Army." (6 Op. Atty. Gen., supra, at 417.)

"For the civil responsibilities of an officer or soldier do not impair his military ones. The obligations are not reciprocally exclusive, but collateral and cumulative. An officer of the Army is bound by the law to be a good citizen, and therefore liable, under such qualifications as the law prescribes, to the same punishment with any other citizen for a given act. But he is also bound by the law to be a gentleman, and an officer, whether in or under command; and if he fails in this, whether the act in which he fail is punishable or not, or punished or not, by the civil magistrate, it is to be punished by military law, according to the sentence of his fellow officers, in subordination always to the supervising authority, in the last resort, of the President of the United States." (6 Op. Atty. Gen., supra, at 417-418.)

"The subject of the civil responsibility of the army was very carefully considered by Attorney General Cushing, in Steiner's Case, 6 Op. Atty. Gen. 413, and the conclusion reached that an act criminal both by military and general law is subject to be tried

either by a military or civil court, and that a conviction or acquittal by the civil authorities of the offense against the general law does not discharge from responsibility for the military offense involved in the same facts. The converse of this proposition is equally true." (United States v. Clark, 31 F. 710, 712, Aug. 1, 1887.)

"Whilst it is true that the jurisdiction of military tribunals is not exclusive in time of peace and in territory where the supremacy of the United States is recognized and the relations between the local government and the National Government normal, and where also the exercise of jurisdiction of the local civil courts is not disturbed, it is equally true that when the armies of the United States are

in hostile territory, and *** engaged in actual warfare, the jurisdiction of such tribunals over such offenses is exclusive (24 Op. Atty. Gen. 570, 23 Op. Atty. Gen. 120,

574, Jan. 26, 1903. Compare: 129-130, May 9, 1900.)

"There are conceivable circumstances under which it no doubt could and should be held that the military department of the government is vested with exclusive jurisdiction to try and punish soldiers of the United States army for offenses committed by them against the law of the land. For instance, if the armies of the United States were in the enemy's country, the military tribunals would then undoubtedly and, for obvious reasons, should have, under the Article of War as established by our government, exclusive jurisdiction of trying and punishing offenses of every grade committed by persons in the military service. Coleman v. Tennessee, 97 U.S. 509, 24 L. Ed. 1119. But we would not say that, where our armies are not in the enemy's territory and where there is an absence of actual hostilities at the time of the commission of the alleged offense, such exclusive jurisdiction exists, albeit a state of war may still exist in contemplation of law between this and another country, only, however, because peace has not been formally declared. In such a situation it seems to be the view of the cases that the jurisdiction of the military and civil tribunals is concurrent. (Ex parte Koester, 206 P. 116, 117-118, Feb. 24, 1922. See also People v. Denman, 177 P. 461, 462-463, Dec. 31, 1918.)

"The Constitution of the United States contains an absolute guaranty that no person shall 'be subject

for the same offense to be twice put in jeopardy of life or limb.' Amendments, art. 5. This record, however, does not present a case to which that clause of the Constitution is applicable. In the interpretation of the Constitution, and in enforcing its provisions, strict attention must be given to the accurate meaning of the words of this supreme law; and in this connection it is to be observed that the words 'same offense' found in this clause of the Constitution are not synonymous with the words 'same act, and, since more than one offense may be actually committed by a single act, the Constitution does not shield the perpetrator from punishment for other offenses when he has been convicted or acquitted of one, although it does exempt him from a second prosecution for that identical offense. The sixty-second article of war, upon which the second prosecution is founded, excludes capital crimes, and from the record it is manifest that when the petitioner was arraigned before the court-martial special care was taken to charge him with an offense different from the one of which he was acquitted by the superior court. Although the same act is specified, the gist of the offense charged is unsoldierly conduct by a soldier, subversive of military discipline. For that offense the petitioner continued to be a amenable to military law, notwithstanding the verdict of the jury declaring him to be innocent of the alleged violation of the laws of the state." (In re Stubbs, 133 F. 1012, 1013-1014, Jan. 3, 1905.)

CASE NOTES

Scope and operation of clause. "It is obvious, that there are two ways by which the militia may be called into service; the one is under state authority, the other under authority of the United States. The power of congress over the militia is limited but by two reservations in favor of the states, viz., the right of officering and that of training them. When distributed by the states, under their own officers the general government have the right, if they choose to exercise it, of designating both the officer and private who shall serve, and to call him forth or punish him for not coming. But the possession of this power, or even the passing of laws in the exercise of it, does not preclude the general government from leaning upon the state authority, if they think proper, for the purpose of calling the militia into service. They may command or request; and in the case before us they obviously confined themselves to the latter mode. Indeed, extensive as their power over the militia is, the United

States are obviously intended to be made in some measure dependent upon the states for the aid of this species of force. For, if the states will not officer or train their men, there is no power given to congress to supply the deficiency." (Houston v. Moore,

5 Wheat. 1, 36, Feb. Term, 1820.)

*** that congress

"It has not been denied here, may not lawfully provide for cases of iminent danger of invasion, as well as for cases where an invasion has actually taken place. In our opinion, there is no ground for a doubt on this point, even if it had been relied on, for the power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel invasions is to provide the requisite force for action, before the invader himself has reached the soil.". (Martin v. Mott, 12 Wheat. 19, 28, Jan. Term, 1827.)