the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings."

The cession contemplated by this clause was made by Virginia and Maryland and constitutes the District of Columbia, in which are located the city of Washington and the seat of the Federal government. In 1841 the part of the District south of the Potomac river was ceded back to Virginia by Congress. The casual reading of the latter part of the clause quoted above might create the impression that this was intended to take the place of the acquisition of land by the Federal power of eminent domain. The distinction between the Federal powers over territory acquired in the two ways is this: The United States has exclusive jurisdiction in all particulars over land purchased with the consent of the state legislature. Over land taken by eminent domain the United States has governmental powers for Federal purposes only. Thus, if land for a post office is purchased in Chicago without the consent of Illinois, the state retains such jurisdiction over the property as does not interfere with postal purposes. If Illinois consents to the acquisition, it loses all jurisdiction not expressly retained (29).

§ 329. Military powers: Constitutional provisions. The Constitution, Article I, section 8, §§ 11-16, gives Congress power:

"To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; "To raise and support armies, but no appropriation

(29) Fort Leavenworth Railroad Co. v. Lowe, 114 U. S., 525.

of money to that use shall be for a longer term than two years;

"To provide and maintain a navy;

"To make rules for the government and regulation of the land and naval forces;

"To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions;

"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."

Section 9, § 2, provides: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

§ 330. Same: During actual hostilities. These provisions give the United States all of the belligerent powers ordinarily exercised by sovereign nations in carrying on war, foreign or domestic. Although Congress alone may declare war, the executive department may recognize its existence in fact, in advance of congressional declaration, and may take appropriate military action to meet the situation. Thus, battles between the American and Mexican troops had taken place before Congress formally declared the existence of the Mexican war; and important armed collisions took place during the Civil war before

any action on the part of Congress. Indeed, the existence of civil war is rarely accompanied by any public declaration of the fact, the test of its existence being that the regular course of justice in the courts is interrupted by the insurrectionary proceedings (30).

When a state of war exists as a fact, the entire territorial area in insurrection may be treated as hostile territory, and property and persons within it may be dealt with according to the laws of war, although in fact a considerable number of inhabitants be loyal citizens of the United States (31). As a part of its belligerent powers Congress may confiscate the property of residents of the enemy's country, or of hostile territory, as well as all property so situated as to be of use to the enemy, no matter where the owner lives. This power was exercised to a considerable extent by Congress during the Civil war, and it was upheld as justified by the war power, and not invalid either as an ex post facto law, a punishment for crime without a jury trial, or a taking of property without due process of law (32).

The state militia may be called into Federal service for the purposes specified in the Constitution, whenever the proper Federal authorities may decide this to be necessary. An act of Congress at present commits the determination of this necessity to the President. The United States is not dependent upon state militia, but may raise its own armies by volunteer enlistment or by

(30) The Prize Cases, 2 Black, 635.

(31) Ibid.

(32) Miller v. United States, 11 Wallace 268.

Vol. XII-23

draft or conscription, as was largely done during the Civil war (33).

The period of beginning and ending hostilities is fixed by the public acts of the political departments of government, and will be followed by the courts. These periods differed slightly in different southern states during the Civil war (34).

The rules of warfare proper to be observed between belligerents, and the general conduct of hostilities under the rules of war are discussed on the article on International Law in Volume X of this work.

§ 331. Military jurisdiction. In Ex parte Milligan (35) it was said by one of the judges:

"There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the national government, when the public danger requires its exercise. The first of these may be called jurisdiction under military law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be

distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction. of the President, with the express or implied sanction of Congress; while the third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within the districts or localities. where ordinary law no longer adequately secures public safety and private rights."

§ 332. Same: Controverted questions. As regards the first two of these military jurisdictions, military law and military government, there is no conflict of opinion. As regards the third there was much controversy during the Civil war. The concrete question most frequently presented was whether the President could suspend the writ of habeas corpus as to persons arrested by the government in parts of the country not the scene of insurrection or hostilities, or could try them by martial law. Where Congress has not authorized this, a presidential suspension of the writ is apparently illegal (36); but a contrary practice was common during the Civil war and was subsequently ratified by Congress, or indemnity provided for executive officers. The Supreme Court divided five to four in a dictum against the power of the President or Congress to cause the trial of men by martial law where the courts are open and not subject to hostile in

(36) Ex parte Merryman, Taney, 246.