they should be treated otherwise, their own government would retaliate.


§ 10. But it is necessary that rules should be adopted concerning captures made, whether on land or water. Congress is authorized by the Constitution to make these rules, which, when made, become laws the same as any other laws; and, for the purpose of enforcing them, courts of admiralty have been established, whose business it is to inquire into the legality of the course pursued in taking these prizes. Persons might go out in pursuit of prizes, having no authority, or, having authority, might capture from the ships of neutrals; or an illegal course might be pursued after capture, though the capture itself were legal.

§ 11. "The cognizance of all captures or prizes," says Blackstone, "and their incidents, belong exclusively to the courts of the country to which the captors belong, and from whom they derive their authority to make their captures. The remedy for illegal acts of capture is by the institution of proper prize-proceedings in the prizecourts of the captors."


§ 12. The other war-powers vested in Congress would be utterly \iseless without the power to raise and support armies. Probably no power of Congress mentioned in the Constitution met with so strong opposition before the people as this one to raise and support armies. It was urged with great force and vehemence, that, being unlimited, it would be dangerous to the liberties of the people, and would finally result in the establishment of a military despotism.

§ 18. This clause refers to the regular or standing army. Congress had no such power under the Confederation. All they could do was "to agree on the number of land-forces, and to make requisition on each State for its quota, in proportion to the number of white inhabitants in such State." True, these requisitions were to be binding on the States; but the government must wait their convenience and disposition.

§ 14. The army is created by enlistments under the acts of Congress. The enlistment is for five years in the regular army. In October, 1880, this branch of the military service numbered a little over twenty-six thousand men.


§ 15. The Articles of Confederation gave to Congress the power "to build and equip a navy." But, in the Constitutional Convention, the words "to provide and maintain a navy" were accepted, as having greater breadth and appropriateness of meaning.

§ 16. The navy consists of the entire number of ships of war belonging to a nation or people considered collectively. A navy is necessary for the protection of our fisheries, commerce, and navigation. We need it not only on the ocean, but on our lakes, and on several of our rivers, and this even in time of peace.

§ 17. But, in time of war, a navy becomes indispensable to a people whose geographical position is like ours. We have a long line of seaboard, through which we are exposed to the depredations of hostile fleets and invading armies. Located on that seaboard are some of our most important, flourishing, and populous cities. The possession of the chief commercial cities in any country by an enemy in time of war gives him a great advantage in the contest. He can exact contributions of the inhabitants for the support of his army.

§ 18. In the earlier years of our history, our navy found but little favor in the popular estimation. Judge Story says, "It was not until during the late war with Great Britain (1812), when our little navy, by a gallantry and brilliancy of achievement almost without a parallel, had literally fought itself into favor, that the nation at large began to awake from its lethargy on this subject, and to insist upon a policy which should at once make us respected and formidable abroad, and secure protection and honor at home."

§ 19. According to the report of the Secretary of the Navy, dated Nov. 29th, 1875, the total number of vessels in that department of the public service at that time was one hundred and forty-seven. Of these, there were in commission and on active duty one hundred and fifteen vessels, carrying one thousand and twenty-nine guns.


§ 20. Nothing need be said to vindicate the policy and necessity of vesting in Congress the power to make rules for the government and regulation of the land and naval forces. It naturally follows the power to raise and support armies, and to provide and maintain a navy. This clause was not in the first draught of the Constitution, as appears from the Madison Papers; but it was afterwards inserter* as an amendment, without opposition.


§ 21. The next power of Congress to be considered is that of "providing for organizing, arming, and disciplining the militia." The country could not safely rely solely on its standing army for any and every emergency that might arise. The Constitution, therefore, gives Congress jurisdiction over the militia of the several States, and this power of providing for organizing, arming, and disciplining them, as incidental to that jurisdiction. The States have the appointment of the officers over, and the training of, the militia, as we shall see when we come to treat of the rights of States; but this must be done as directed by Congress.

§ 22. Congress is authorized also to make provision for governing such part of the militia as may be employed in the service of the United States. Rigid discipline and government have always been found necessary in the army, whether constituted of regulars or militia. This government must be uniform to be salutary. To be uniform, it must emanate from a single source. It would not do, therefore, to leave the government of the militia in the employ of the nation in the hands of the several States in which they might enlist.

§ 23. There are three purposes for which Congress may provide for calling forth the militia of the several States : —

First, To execute the laws of the Union;

Second, To suppress insurrections/

Third, To repel invasions.

The organization of the militia is maintained at an expense comparatively trifling when the advantages to the country are considered.

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It saves the immense cost of a large standing army in time of peace. The nation must have the means at its command for carrying on a foreign war, as well as for maintaining its authority at home; and the following reasons favor the militia system: —

1st. Recent experience has demonstrated that but a few months of discipline are necessary to insure bravery, courage, and fortitude, in the field of conflict, on the part of the militia. They have crownei themselves with immortal honor, and have added unfading luster to the national reputation.

2d. An agricultural, manufacturing, and commercial community like ours will be unlikely to become involved in long and expensive wars at home or abroad. But few instances in our history have occurred when it has been necessary to call forth the militia of the several States in any considerable numbers and for any great length of time. Our history, thus far, has proved that it is more economical to keep up an extensive militia organization of the States than to keep a large standing army in the field.

3d. The President of the United States is commander-in-chief of the army and navy at all times, and of the militia of the several States when called into actual service of the government. He can not call forth the militia except under provisions made by Congress. Various acts of Congress have been passed, at different times, defining the emergencies under which the President may call forth the militia. He is to be sole judge of the necessity to call them forth. At the close of the late Civil War, 1865, over one million of the militia were mustered out of service within a few months, and returned to the industrial pursuits of the country.

§ 24. It is believed that the standing armies of the world are now larger than they have been at any time since the great wars of the first Napoleon. The army of the United States now num hers about twenty-five thousand men. The annual cost of ou. army at present is a little less than forty million dollars.

The army of France has been fixed at seven hundred and fifty thousand men in the "active" army, and five hundred and fifty thousand in the "passive;" the latter being called "the National Guard Mobile." Total, thirteen hundred thousand men available for war. A contingent of one hundred thousand men is annually available to recruit the army.

The British army numbers about two hundred thousand men, the larger part of which is at home; Ireland alone absorbing about twenty-five thousand troops.

The Prussian army numbers about six hundred thousand men. The Italian army now numbers about two hundred and fifteej thousand, and is one of the finest in the world.

The Austrian army numbers about seven hundred thousand men Its cavalry is very superior. The government raises its own horses, and thus secures the very best animals for service.

The Russian army numbers about eight hundred thousand men; and it could readily be increased, in case of war, to twelve hundred thousand. It is spread all over the empire, from the Baltic to the Caucasus.

The Spanish army is small, not exceeding eighty thousand men; but it is generally in excellent condition, and supplied with the best arms to be procured.

The number of men maintained in the standing armies of civilized nations is not less than thirty-six hundred thousand. All these vast numbers are snatched away from the pursuits of useful industry, and condemned to idleness and a vicious life; while the laboring masses are tasked for their support, and for the costly armaments, they require. *


1. To constitute tribunals inferior to the Supreme Court. 34.

2. To determine by law where the trials for crimes shall be

held which are not committed within any State. 68.

3 May make exceptions and regulations in cases over which

the Constitution gives the Supreme Court appellate

jurisdiction. 67. _ .

§ 1. The Constitution establishes a Supreme Court; but it is left

with Congress to organize that tribunal. The power is vested in

Congress to establish tribunals inferior to the Supreme Court; and, as

these tribunals constitute a part of the national judiciary, they will

* This statement Is based on the condition of things in Europe as they were in 1868.

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