صور الصفحة
PDF
النشر الإلكتروني

not felony, because punishable by the civil and not the common law.

§ 187. The High Seas means all the waters of the ocean, whether within the territorial boundaries of a foreign nation or of a domestic state.1

Between high-water mark and low-water mark, where the tide ebbs and flows, the Common Law and the Admiralty hold alternate jurisdiction; one upon the water when it is full sea, the other upon the land when it is ebb.

The high seas, here defined, however, do not extend to creeks and inlets, but, as it respects the states, means that part of the ocean which washes the sea-coast, and is not included within any county.

§ 188. Congress, by various enactments, have exercised the powers vested in them by this section, and have affixed various punishments to the crimes of treason, murder, robbery, piracy, &c.

§ 189. Congress has power to provide for the punishment of offences committed by persons serving on board a ship of war of the United States, wherever that ship may be: but Congress has not exercised that power in the case of a ship lying in the waters of the United States.2

§ 190. Clause 10th. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:

§ 191. These powers are attributes of sovereignty; they are vested in the national government, and not in the states. The power of declaring war is the highest which the government possesses, and involves directly the happiness and existence of the people: as it is called the last resort of kings, so it is certainly the last appeal of nations.

15 Wheaton's Rep. 184, 200, 204. G

23 Wheaton, 336.

§ 192. To grant letters of marque and reprisal is but a part of the power to declare war; for such an act would unquestionably produce war.

§ 193. The power of "making rules concerning captures on land and water," which is superadded in the Constitution to that of declaring war, is not confined to captures which are extra-territorial, but extends to rules respecting enemies' property found within the territory, and is an express grant to Congress of the power of confiscating enemies' property found within the territory at the declaration of war, as an independent power, not included in that of declaring war.

§ 194. Clause 11th. To raise and support armies; but no appropriation of money to that purpose shall be for a longer term than two years:

§ 195. The United States have always had a small standing army, to keep up the forts on the sea-board and awe the Indians. The provision preventing an appropriation for a longer period than two years was for the obvious purpose of keeping the standing army always within the immediate control of the people.

§ 196. Clause 12th. To provide and maintain a navy:

This, like the provision to maintain an army, is a consequence of the general power to declare war, and is absolutely necessary to national existence. The United States have long had a respectable navy, and all the provisions necessary to its organization, support, and increase have been provided for by law.

§ 197. Clause 13th. To make rules for the government and regulation of the land and naval forces :

Congress have established, by law, rules and articles of war for the government of the army, and rules and regulations for the government of the navy. These

18 Cranch, 110. 2 Act of April, 1806.

1800.

3

3 Act of April, rules provide for the discipline of the service, the mode of trial, and the punishment for offences. The rules and articles of war must be read at the head of each corps every six months, and are to govern as well the militia in service as the regulars, but the militia are to be tried by their own officers.

§ 198. Whatever crimes are committed on board of public ships of war of the United States, whether in port or at sea, are exclusively cognizable and punishable by the government of the United States.1 The public ships of sovereigns, wherever they may be, are deemed to be extra-territorial, and enjoy the immunities from the local jurisdiction belonging to their sovereign.2

§ 199. Clause 14th. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions :

Clause 15th. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress:

§ 200. Upon these two provisions, and a subsequent one, that the President shall be commander-in-chief of the militia when called into actual service, rest the whole power of the national government over the militia. Upon two occasions only has the power to "call forth the militia to execute the laws, suppress insurrections, and repel invasions," been exercised, one the insurrection in Pennsylvania in 1794, the other to repel the invasion of the enemy during the war of 1812. Some serious questions have arisen under this power. In consequence of a requisition made by President Madison on the governors of Massachusetts and Connecticut for their quotas of militia, a question arose between the general

▲ United States vs. Bevans, 3 Wheaton, 336.

• Idem.

and state governments in relation to this power. In that and following discussions, these questions were made:

1. Who is to determine when the exigency pointed out by the Constitution has happened?

2. Whether the President can place the militia under the command of any one but himself?

3. Whether he can detach parts of the militia corps?

§ 201. On the first question, the governors of Connecticut, Massachusetts, and Rhode Island, with the Supreme Court of Massachusetts, held that the governors of the states were to judge when the exigency contemplated by the Constitution had happened. This doctrine, however, was denied by President Madison in his Message to Congress, and the question has since been solemnly settled by the Supreme Court of the United States. It was then settled that the authority to decide belongs exclusively to the President. The act of 1795, providing for the mode of calling out the militia, was framed on this principle. The law contemplates that, in certain exigencies, orders shall be given to carry the powers into effect, and no person can have a right to disobey them. No provision is made for an appeal from, or review of, the President's opinion. And whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, the general rule of construction is, that he is thereby constituted the sole and exclusive judge of the existence of those facts.3

§ 202. The power to govern the militia, when in the service of the United States, is an exclusive one; for any such power concurrent in other authorities would destroy all unity of action and command.

§ 203. There is nothing in the Constitution to pro

1 Martin vs. Mott; 12 Wheaton's Rep. 30, 31.

Com. 245, 246.

312 Wheaton, 19, 31, 32.

21 Kent's

1

hibit a state from calling forth its own militia to assist the United States, when that militia is not in the service of the United States, to suppress insurrections and repel invasions. Such a concurrent exercise of power does not interfere with, or obstruct the exercise of, the powers of the Union.

§ 204. Upon the questions whether the President can delegate his authority, or detach parts of the militia corps, different opinions have been advanced by the state and national authorities. Thus Connecticut and Massachusetts, during the war, asserted that he could not; President Madison, that he could. The latter seems the general opinion, and is certainly most consonant to

reason.

§ 205. By the act of May, 1792, Congress provided for the organization, arming, and disciplining of the militia. By that act, directions were given as to the mode in which the President was to give his orders; and refusal or neglect to obey them was declared a public offence, and the mode of trial, by court-martial, was pointed out. In relation to this act, the Supreme Court have decided, that the militia, when called into actual service, were not to be considered in that service, or as national militia, till they were mustered at the place of rendezvous; and that until then, the state retained a right, concurrent with the government of the United States, to punish their delinquency. If the militia, when called into the service of the United States, refuse to obey the order, they remain within the military control of the state, and it is competent for the state to provide for trying and punishing them by a state court-martial.

§ 206. In addition to the act of 1792, Congress have passed several other acts upon this subject. In February, 1795, a law was passed calling forth the militia, in contemplation of the well-known Whiskey Insurrection. In

1 Hurton vs. Moore; 5 Wheat. Rep. 1.
G2

« السابقةمتابعة »