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WAR POWERS UNDER THE CONSTITUTION.

BY

CHARLES E. HUGHES,

OF NEW YORK.

In the unusual circumstances of war, it is natural that there should be some confusion with respect to the constitutional warrant for extraordinary action taken or contemplated. Some altogether misconceive the constitution. Others vaguely fear that we are serving temporary exigency at the expense of our fundamental law, and that we are thus breeding a lawless constitutionignoring spirit which is a serious menace to our future. Others seek to raise doubts of power in order to embarrass the prosecution of the war. And there seem to be still others who in their zeal impatiently and without thought put the constitution aside as having no relation to these times.

CONSTITUTIONAL GOVERNMENT IN WAR.

While we are at war, we are not in revolution. We are making war as a Nation organized under the constitution, from which the established national authorities derive all their powers either in war or in peace. The constitution is as effective today as it ever was and the oath to support it is just as binding. But the framers of the constitution did not contrive an imposing spectacle of impotency. One of the objects of "a more perfect Union" was "to provide for the common defence." A nation which could not fight would be powerless to secure "the Blessings of Liberty to Ourselves and our Posterity." Self-preservation is the first law of national life and the constitution itself provides the necessary powers in order to defend and preserve the United States. Otherwise, as Mr. Justice Story said, "the country would be in danger of losing both its liberty and its sovereignty from its dread of investing the public councils with the power of defending it. It would be more willing to submit to foreign conquest than to domestic rule."

DISTRIBUTION OF POWERS.

The war powers under the constitution are carefully distributed. To Congress is given the power " to declare war." The proposal to add "to make peace" found no favor, as this was deemed to belong to the treaty-making power vested in the President and the Senate. To the President was given the direction of war as the Commander-in-Chief of the Army and Navy. It was not in the contemplation of the constitution that the command of forces and the conduct of campaigns should be in charge of a council or that as to this there should be division of authority or responsibility. The prosecution of war demands in the highest degree the promptness, directness and unity of action in military operations which alone can proceed from the Executive. This exclusive power to command the army and navy and thus to direct and control campaigns exhibits not autocracy, but democracy fighting effectively through its chosen instruments and in accordance with the established organic law.

PLENARY POWER TO WAGE WAR.

While the President is Commander-in-Chief, in the Congress resides the authority "to raise and support Armies" and "to provide and maintain a Navy"; and "to make Rules for the Government and Regulation of the land and naval Forces"; and as a safeguard against military domination the power to raise and support armies is qualified by the provision that "no appropriation of Money to that Use shall be for a longer term than two Years." Otherwise this power is unlimited. The Congress is to prescribe the military organization and provide the military establishment, fix numbers, regulate equipment, afford maintenance, and for these purposes appropriate such amounts of money as it thinks necessary.

POWER TO PASS CONSCRIPTION LAWS.

Upon every citizen lies the duty of aiding in the common defence. In exercising its constitutional power to raise armies, the Congress may enforce this duty. The Congress may call anyone to service who is able to serve. The question who may be called, or in what order, is simply one for the judgment of the National

Legislature. The power vested in Congress is not to raise armies simply by calling for volunteers, but to raise armies by whatever method Congress deems best, and hence must be deemed to embrace conscription. To the framers of the constitution, the draft was a familiar mode of raising armies, as it had been resorted to by the Colonies to fill up their quotas in the Revolutionary War. It is true that the proposal, in 1814, of Monroe as Secretary of War to resort to conscription was vigorously opposed as unconstitutional. But the draft was put in force both by the Union and by the Confederacy during the Civil War and its validity was sustained by the courts in both North and South. "The power of coercing the citizen," said Judge Robertson, of Virginia, in Burroughs v. Peyton, 16 Gratt. 470 (1864), "to render military service, is indeed a transcendent power, in the hands of any government; but so far from being inconsistent with liberty, it is essential to its preservation."

LINCOLN'S OPINION.

Permit me to quote upon this question the opinion prepared (although not published) by President Lincoln, which sets forth admirably the grounds for sustaining the power of Congress to pass a Conscription Act.

"In this case, those who desire the rebellion to succeed, and others who seek reward in a different way, are very active in accommodating us with this class of arguments. They tell us the law is unconstitutional. It is the first instance, I believe, in which the power of Congress to do a thing has ever been questioned in a case when the power is given by the Constitution in express terms. Whether a power can be implied when it is not expressed has often been the subject of controversy; but this is the first case in which the degree of effrontery has been ventured upon of denying a power which is plainly and distinctly written down in the Constitution. The constitution declares that 'The

1 See Kneedler v. Lane, 5 Phila. 485; 45 Pa. St. 238; McCall's Case, Fed. Cas. No. 8669; Ex parte Hill, 38 Ala. 429; Ex parte Bolling, 39 Ala. 609; Jeffers v. Fair, 33 Ga. 347; Barber v. Irwin, 34 Ga. 28; Parker v. Kaughman, 34 Ga. 136; Gatlin v. Walton, 60 N. C. 333; Ex parte Coupland, 26 Tex. 386; Burroughs v. Peyton, 57 Va. (16 Gratt.) 470; also, Lanahan v. Birge, 30 Conn. 438, 443; Matter of Spangler, 11 Mich. 298; Allen v. Colby, 47 N. H. 544; In re Griner, 16 Wis. 423; Druecker v. Salomon, 21 Wis. 621.

Congress shall have power. . . to raise and support armies; but no appropriation of money to that use shall be for a longer term than two years.' The whole scope of the conscription act is 'to raise and support armies.' There is nothing else in it. . . . Do you admit that the power is given to raise and support armies, and yet insist that by this act Congress has not exercised the power in a constitutional mode? has not done the thing in the right way? Who is to judge of this? The Constitution gives Congress the power, but it does not prescribe the mode, or expressly declare who shall prescribe it. In such case Congress must prescribe the mode, or relinquish the power. There is no alternative. ... The power is given fully, completely, unconditionally. It is not a power to raise armies if State authorities consent; nor if the men to compose the armies are entirely willing; but it is a power to raise and support armies given to Congress by the Constitution without an 'if.' . . . The principle of the draft, which simply is involuntary or enforced service, is not new. It has been practiced in all ages of the world. It was well known to the framers of our Constitution as one of the modes of raising armies, at the time they placed in that instrument the provision that the Congress shall have power to raise and support armies.'... Wherein is the peculiar hardship now? Shall we shrink from the necessary means to maintain our free government, which our grandfathers employed to establish it and our own fathers have already employed once to maintain it? Are we degenerate? Has the manhood of the race run out?""

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These are the words of Lincoln, penned in the midst of the Civil War, in which conscription was enforced, and his reasoning is conclusive. And while the question was not presented to the United States Supreme Court, the power of Congress was explicitly recognized in Tarble's case and in later opinions.*

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CONSCIENTIOUS OBJECTORS.

The constitutional authority thus vested in Congress is not limited by any qualification arising from religious beliefs or conscientious objections. These are matters not affecting power, but policy. As Mr. Justice Harlan said in delivering the opinion of the Supreme Court in Jacobson v. Massachusetts," one "may be compelled, by force if need be, against his will and without regard

Lincoln's Works, Vol. II, p. 388.

13 Wall. 397, 408.

'See In re Grimley, 137 U. S. 147, 153; Jacobson v. Massachusetts, 197 U. S. 11, 29.

197 U. S., p. 29.

to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defence." It is, however, in my judgment, a sound policy on the part of Congress to provide for the discharge from the draft of conscientious objectors. Nothing, I believe, is gained for the country by over-riding the claims of conscience in such cases; but it is obviously necessary that there should be such definitions and restrictions as will prevent imposture and evasion by those who have as little conscience as they have stomach for war.

THIRTEENTH AMENDMENT.

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It is now contended in some quarters that this power, which undoubtedly Congress had, has been restricted or abolished by the Thirteenth Amendment, which was adopted after the close of the Civil War. This amendment provides that "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction." It has been said by the United States Supreme Court that the plain intention was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit, which is the essence of involuntary servitude." It hits not only slavery, but peonage. But the language of the amendment was not new. It reproduced the historic words of the Ordinance of 1787 for the Government of the Northwest Territory, and its terms, construed in the light of its history and plain purpose, afford no basis whatever for the conclusion that it interfered in the slightest degree with the power of Congress to raise and support armies.

In the case of Robertson v. Baldwin, it was argued that the Thirteenth Amendment invalidated certain provisions of the Revised Statutes authorizing justices of the peace to issue warrants for deserting seamen. In denying the claim, the Court said: "It is clear, however, that the amendment was not intended to introduce any novel doctrine with respect to certain descriptions

165 U. S. 275.

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