ment may pass laws requiring the return of fugitives: they may pass other laws punishing their crimes, or relieving them from penalty. The power to do the one by no means negatives the power to do the other. If Congress should discharge the obligations of slaves to render labor and service, by passing a law to that effect, such law would supersede and render void all rules, regulations, customs, or laws of either State to the contrary, for the constitution, treaties, and laws of the United States are the supreme law of the land. If slaves were released by act of Congress, or by the act of their masters, there would be no person held to labor as a slave by the laws of any State, and therefore there would be no person to whom the clause in the constitution restraining State legislation could apply. This clause, relating to fugitive slaves, has often been misunderstood, as it has been supposed to limit the power of Congress, while in fact it applies in plain and express terms only to the States, controlling or limiting their powers, but having no application to the general government. If the framers of the constitution intended to take from Congress the power of passing laws relating to slaves in the States or elsewhere, they would have drafted a clause to that effect. They did insert in that instru ment a proviso that Congress should pass no law pro hibiting the importation of such persons as any of the States should think proper to admit (meaning slaves) prior to 1808.* And if they did not design that the legislature should exercise control over the subject of domestic slavery, whenever it should assume such an aspect as to involve national interests, the introduction of the proviso relating to the slave

* Constitution, Art. I. Sect. 9.

trade, and of several other clauses in the plan of government, makes the omission of any prohibition of legislation on slavery unaccountable.

CONCLUSION.

Thus it has been shown that the government has the right to appropriate to public use private property of every description; that "public use" may require the employment or the destruction of such property; that if the "right to the labor and service of others," as slaves, be recognized in the broadest. sense as "property," there is nothing in the constitution which deprives Congress of the power to appropriate “that description of property" to public use, by terminating slavery, as to all persons now held in servitude, whenever laws to that effect are required by "the public welfare and the common defence" in time of war; that this power is left to the discretion of Congress, which is the sole and exclusive judge as to the occasions when it shall be exercised, and from that judgment there is no appeal. The right to "just compensation" for private property so appropriated will depend upon the circumstances under which it is taken, and the legal conditions of the claimant.*

NOTE. - As to the use of discretionary powers in other departments, see Martin v. Mott, 12 Wheat. 29-31; Luther v. Borden, 7 How. 44, 45.

* Note to Forty-third Edition. See Solicitor's Opinions, illustrative of the manner in which these principles were applied by the War Department during the rebellion (pp. 357-390.) See also Note on “Slaves in the Army,” p. 405.

INTRODUCTION TO CHAPTER II.

THE Constitution, Art. I., Sect. 8, clause 18, gives Congress power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof."

Art. II., Sect. 2, clause 1, provides that "the President shall be Commander-in-chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States.”

Art. I., Sect. 8, declares that "Congress shall have power to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions."

an

As the President is, within the sense of Art. I., Sect. 8, clause 18, officer of government;" and by virtue of Art. II., Sect. 2, clause 1, he is Commander-in-chief of the Army and Navy'; and as, by virtue of Art. II., Sect. 2, clause 1, and Art. I., Sect. 8, the power is vested in him as an officer of the government" to suppress rebellion, repel invasion, and to maintain the Constitution by force of arms, in time of war, and for that purpose to overthrow, conquer, and subdue the enemy of his country, so completely as to "insure domestic tranquillity," - it follows by Art. I., Sect. 8, clause 18, that Congress may, in time of war, pass all laws which shall be necessary and proper to enable the President to carry into execution" all his military powers.

It is his duty to break down the enemy, and to deprive them of their means of maintaining war: Congress is therefore bound to pass such laws as will aid him in accomplishing that object.

If it has power to make laws for carrying on the government in time of peace, it has the power and duty to make laws to preserve it from destruction in time of war.

CHAPTER II.

WAR POWERS OF CONGRESS.*

CONGRESS has power to frame statutes not only for the punishment of crimes, but also for the purpose of aiding the President, as commander-in-chief of the army and navy, in suppressing rebellion, and in the final and permanent conquest of a public enemy. "It may pass such laws as it may deem necessary," says Chief Justice Marshall," to carry into execution the great powers granted by the constitution;" and "necessary means, in the sense of the constitution, does not import an absolute physical necessity, so strong that one thing cannot exist without the other. It stands for any means calculated to produce the end."

RULES OF INTERPRETATION.

The constitution provides that Congress shall have power to pass "all laws necessary and proper" for carrying into execution all the powers granted to the gov ernment of the United States, or any department or officer thereof. The word "necessary," as used, is not limited by the additional word "proper," but enlarged thereby.

"If the word necessary were used in the strict, rigorous sense, it would be an extraordinary departure from the usual course of the human mind, as exhibited in solemn instruments, to add another word, the only possible effect of which is to qualify that strict and rigorous meaning, and to present clearly the idea of a choice of means in the course of legislation. If no means are to be resorted to but such as

* For references to the clauses of the Constitution containing the war powers of Con gress, sec ante, pp. 25, 26.