To Congress is expressly granted by the Constitution the power to declare war. By war is meant an armed conflict of a public nature, the parties to which are recognized as belligerents and entitled to all the rights and subject to all the obligations which international law recognizes and imposes.

But war may come into existence as a fact without a formal declaration, and in the Prize Cases21 the Supreme Court has held that this existence of war as a fact may be recognized by the President, in advance of Congressional declaration, and that he may thereupon take action, as, for example, the establishment of a blockade, which in time of peace he would not be constitutionally empowered to institute.

19 United States v. Freeman, 3 How. 556; 11 L. ed. 724; Smith v. Whitney, 116 U. S. 167; 6 Sup. Ct. Rep. 570: 29 L. ed. 601.

20 Little v. Barreme, 2 Cr. 170; 2 L. ed. 243.

21 2 Black, 635; 17 L. ed. 459.

After defining war in a public sense and asserting that a civil strife may become a public war by reason of numbers, powers and organization of the persons who originate and carry it on, the court say: "Whether the President, in fulfilling his duties as commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions, as will compel him to accord to them the character of belligerents, is a question to be decided by him, and the court must be governed by the decisions and acts of the political department of the government to which this power was entrusted. He must determine what degree of force the crisis demands. The proclamation of blockade is, itself, official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case." 22

The first establishment of the blockade by the President was on April 19, 1861. July 13 of the same year Congress by act formally declared war to exist, and by retroaction validated the acts of the President prior to that date.

In the case of The Protector23 the court held that the war had begun at the times of the President's two proclamations of blockade, April 19 and 27, 1861, but that it had closed at different dates in the different States. Thus in some of the States it was declared not to have ended until August 20, 1866, or about a year after active military operations had come to an end. The court in The Proctor case said: "The question in the present case is, when did the rebellion begin and end ? In other words, what space of time must be considered as excepted from the operation of the Statute of Limitations by the war of rebellion?

"Acts of hostility by the insurgents occurred at periods so various, and of such different degrees of importance, and in parts of the country so remote from each other, both at the commencement and the close of the late civil war, that it would be difficult, if not impossible, to say on what precise day it began or terminated. It is necessary, therefore, to refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken.

22 In a dissenting opinion Justice Nelson, while granting that a civil strife might become a public war, with the parties thereto belligerents, declared that this change of status could not be brought about save by the formal action of Congress, the body which by the Constitution is authorized to declare war.

23 12 Wall. 700; 20 L. ed. 463.

"The proclamation of intended blockade by the President may, therefore, be assumed as marking the first of these dates, and the proclamation that the war had closed as marking the second. But the war did not begin or close at the same time in all the States. There were two proclamations of intended blockade; the first of the 19th of April, 1861, embracing the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas; the second of the 27th of April, 1861, embracing the States of Virginia and North Carolina; and there were two proclamations declaring that the war had closed: one issued on the 2d of April, 1866, embracing the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, Tennessee, Alabama, Louisiana, and Arkansas; and the other issued on the 20th of August, 1866, embracing the State of Texas."

To the writer it seems a very questionable construction of the Constitution to hold that in the case of a civil struggle the President has the power, upon his own judgment, to affix to it the character of a public war, and thus to bring into existence all the many legal conditions which that status imports. That he has full power to use all the forces of the nation to put down resistance to the execution of the federal laws there can be no question, but it would seem that the explicit declaration of the Constitution that to Congress belongs the power to declare war necessarily excludes from the executive sphere of authority the power to pronounce that public war exists. The writer is, therefore, disposed to quote with approval the following language of Justice Nelson employed in his dissenting opinion in the Prize Cases. When public war exists, he says: "The people of the two countries become immediately the enemies of each other - all intercourse, commercial or otherwise, between them unlawful - all contracts existing at the commencement of the war suspended, and all made during its existence utterly void. The insurance of enemy's property, the drawing of bills of exchange or purchase on the enemies' country, the remission of bills or money to it are illegal and void. Existing partnerships between citizens or subjects of the two countries are dissolved and, in fine, interdiction of trade and intercourse, direct or indirect, is absolute and complete by the mere force and effect of war itself. All the property of the people of the two countries on land or sea are subject to capture and confiscation by the adverse party as enemies' property, with certain qualifications as it respects property on land (Brown v. United States, 8 Cr. 110; 3 L. ed. 504). All treaties between the belligerent parties are annulled. The ports of the respective countries may be blockaded, and letters of marque and reprisal granted as rights of war, and the law of prizes as defined by the law of nations comes into full and complete operation, resulting from maritime captures, jure belli. War also effects a change in the mutual relations of all States or countries, not directly, as in the case of belligerents, but immediately and indirectly, though they have no part in the contest but remain neutral. This great and pervading change in the existing condition of a country, and in the relations of all her citizens or subjects, external and internal, from a state of peace, is the immediate effect and result of a state of war; and hence the same code which has annexed to the existence of a war all these disturbing consequences has declared that the right of making war belongs exclusively to the supreme or sovereign power of the State. This power in all civilized nations is regulated by the fundamental laws or municipal constitution of the country. By our Constitution, the power is lodged in Congress."

That no war can exist between the United States and a foreign State, except by the declaration of Congress there has never been any doubt. This declaration may, however, be, as in the case of the Mexican War, that a state of war exists, or one declaring that war shall be begun. The terms of such a declaration fix the exact date of the beginning of the war so far as concerns matters of municipal law, and is binding on the courts of the State issuing it. From the viewpoint, however, of other nations, such a declaration is not conclusive, the beginning of the war being one of fact to be interpreted in the light of the general principles of international law.24