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Subject Area: Law
Topic: The American Revolution and Constitution

§ 229.: War and rebellion. 5 — - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 229.

War and rebellion.5 —

It is provided by the constitution that Congress shall have the power “to declare war, to grant letters of marque and reprisal, and make rules concerning captures on land and water.”6 We are not concerned in this connection with the general war powers of the government, except so far as the exercise of them bears upon the citizens of the United States. Under the authority “to grant letters of marque and reprisal, and make rules concerning captures on land and water,” it is held to be a legitimate means of prosecuting war to seize and confiscate the property of the enemy, and this right is also claimed for the United States against its citizens who have engaged in rebellion.7 On the same ground, it has been held to be lawful as a war measure, to emancipate by proclamation the slaves of those who are engaged in rebellion.1 Congress may also in the suppression of a rebellion establish military tribunals for the trial of military offenses in those sections of the country which constitute the seat of war, and where in consequence civil law is superseded by military law. But where the courts of the country are open for the hearing of criminal offenses, and hostilities are not in such close proximity as to prevent the courts from enforcing their decrees, the jurisdiction of the civil courts cannot be invaded by a military court.2

In further support of the war power of the United States, Congress is empowered to “raise and support armies.”3 The manner of “raising” an army, the mode of enlistment, must be determined by acts of Congress. As long as the enlistments are voluntary, no constitutional question can arise. Although it has been questioned whether the government could make forced enlistments, it cannot be seriously doubted that Congress possesses this power; and under the government of the Confederate States, whose constitution made a similar grant of power to the Confederate Congress, it was held that the general government possessed this power to compel citizens of the country to perform military service in its armies, in time of war.4

[5]See Chapter VII, Tiedeman’s Unwritten Constitution of the United States, for a critical discussion of constitutional limitations in time of war, and of the value as a precedent of the case of Ex parte Mulligan, 4 Wall. 2, which is also cited in the present section.

[6]U. S. Const., art. I., § 8, cl. 11.

[7]Miller v. United States, 11 Wall. 268; Tyler v. Defrees, 11 Wall. 331; The Grape Shot, 9 Wall. 129; The Prize Cases, 2 Black, 635.

[1]Slayback v. Cushman, 12 Fla. 427; Weaver v. Lapsley, 42 Ala. 601; Hall v. Keese, 31 Tex. 504; Dorris v. Grace, 24 Ark. 326.

[2]Ex parte Mulligan, 4 Wall. 2.

[3]U. S. Const., art. I., § 8, cl. 12.

[4]Barber v. Irwin, 34 Ga. 27; Ex parte Tate, 39 Ala. 254; Ex parte Coupland, 26 Tex. 386.