Since this clause contains the only specific grant of power to be found in the Constitution for the punishment of offenses outside the territorial limits of the United States, a lower federal court held in 1932[1200] that the general grant of admiralty and maritime jurisdiction by article III, section 2, could not be construed as extending either the legislative or judicial power of the United States to cover offenses committed on vessels outside the United States but not on the high seas. Reversing that decision, the Supreme Court held that this provision "cannot be deemed to be a limitation on the powers, either legislative or judicial, conferred on the National Government by article III, § 2. The two clauses are the result of separate steps independently taken in the Convention, by which the jurisdiction in admiralty, previously divided between the Confederation and the States, was transferred to the National Government. It would be a surprising result, and one plainly not anticipated by the framers or justified by principles which ought to govern the interpretation of a constitution devoted to the redistribution of governmental powers, if part of them were lost in the process of transfer. To construe the one clause as limiting rather than supplementing the other would be to ignore their history, and without effecting any discernible purpose of their enactment, to deny to both the States and the National Government powers which were common attributes of sovereignty before the adoption of the Constitution. The result would be to deny to both the power to define and punish crimes of less gravity than felonies committed on vessels of the United States while on the high seas, and crimes of every grade committed on them while in foreign territorial waters."[1201] Within the meaning of this section an offense is committed on the high seas even where the vessel on which it occurs is lying at anchor on the road in the territorial waters of another country.[1202]

Clauses 11, 12, 13, and 14. The Congress shall have 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 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.

The War Power

SOURCE AND SCOPE

Three different views regarding the source of the war power found expression in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. Writing in The Federalist,[1203] Hamilton elaborated the theory that the war power is an aggregate of the particular powers granted by article I, section 8. Not many years later, in 1795, the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.[1204] Chief Justice Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it. In McCulloch v. Maryland[1205] he listed the power "to declare and conduct a war"[1206] as one of the "enumerated powers" from which the authority to charter the Bank of the United States was deduced. During the era of the Civil War the two latter theories were both given countenance by the Supreme Court. Speaking for four Justices in Ex Parte Milligan, Chief Justice Chase described the power to declare war as "necessarily" extending "to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns."[1207] In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,[1208] the Court referred to "the war power" as a single unified power.[1209]

AN INHERENT POWER