The correctness of the reasoning and of the conclusion of the Chief Justice in this case cannot be questioned except in one respect. Speaking of the condition of affairs existing at the time the alleged trespass was committed, Taney said: "It was a state of war and the established government resorted to the rights and usages of war to maintain itself and to overcome the unlawful opposition." It is not correct to say that war then existed in Rhode Island. War, in public law, has, as is well known, a definite meaning. It means a contest between public enemies termed belligerents, and to the status thus created, definite legal rights and responsibilities are attached by international and constitutional law. War is thus sharply distinguished from a mere insurrection or resistance to civil authority. Until the parties to such a contest are recognized as belligerents, that is, until the struggle has become a "war," the matter is wholly one of municipal law, - one lying wholly without the province of international law which defines and fixes the laws and usages of war. Thus Luther's act was undoubtedly justified, under the constitutional principles governing the rule of martial law, but it could have received no sanction from the laws of war which are applicable only to a state of war. Indeed, it may be said that a State of the Union has not the constitutional power to create, by statute or otherwise, a state of war, or by legislative act or executive proclamation to suspend, even for the time being, all civil jurisdiction.

This point is emphasized by Justice Woodbury in his dissenting opinion. After showing that for many years no such an act would be tolerated in England, and pointing out the constitutional safeguards to personal liberty that have been specifically provided in American public law, the justice says: "It looks certainly like pretty bold doctrine in a constitutional government, that, even in time of legitimate war, the legislature can properly suspend or abolish all constitutional restrictions, as martial law does, and lay all the personal and political rights of the people at their feet." In fact, however, Woodbury continues, no war in a technical sense, that is, as distinguished from a domestic insurrection, existed or constitutionally could have existed in Rhode Island at the time. No State of the Union, he points out, has the authority to declare war, this power, by the federal Constitution, being vested in Congress,11 or "to engage in war unless actually invaded, or in such imminent danger as will not admit of delay," 12 this last qualification without doubt referring to danger from a foreign source or from Indians. The dissenting opinion continues: "Congress alone can declare war, and . . . all other other conditions of violence are regarded by the Constitution as but ordinary cases of private outrage to be punished by prosecutions in the courts, or as insurrections, rebellions or domestic violence, to be put down by the civil authorities, aided by the militia; or, when these prove incompetent, by the General Government when appealed to by the State for aid, and matters appear to the General Government to have reached the extreme stage, requiring more force to sustain the civil tribunals of a State, or requiring a declaration of war, and the exercise of all its extraordinary rights. Of these last, when applied to as here.

11 Art. I, Sec. 8.

12 Art. I, Sec. 10, CI. 3.

and the danger has not been so imminent as to prevent an application the General Government is responsible for the consequences."