This is a proposition too plain for argument. But it does not follow that because such military tribunals cannot be created by Congress under this clause that they cannot be created at all. Is there no other power conferred by the Constitution upon Congress or the military under which such tribunals may be created in time of war? That the law of nations constitutes a part of the law of the land must be admitted. The laws of nations are expressly made laws of the land by the Constitution when it says that "Congress shall have power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." To define is to give the limits or precise meaning of a word or thing in being; to make is to call into being. Congress has power to define, not to make, the laws of nations; but Congress has power to make rules for the government of the army and navy. From the very face of the Constitution, then, it is evident that the laws of nations do constitute a part of the laws of the land. But very soon after the organization of the federal government, Mr. Randolph, then attorney general, said: "The law of nations, although not specifically adopted by the Constitution, is essentially a part of the law of the land. Its obligation commences and runs with the existence of a nation, subject to some modifications on points of indifference." The framers of the Constitution knew that a nation could not maintain an honorable place among the nations of the world that does not regard the great and essential principles of the law of nations as a part of the law of the land. Hence Congress may define those laws but cannot abrogate them, or, as Mr. Randolph says, may "modify on some points of indifference." That the laws of nations constitute a part of the laws of the land, is established from the face of the Constitution upon principle and by authority. But the laws of war constitute much the greater part of the law of nations. Like the other laws of nations, they exist and are of binding force upon the departments and citizens of the government, though not defined by any law of Congress. No one that has ever glanced at the many treatises that have been published in different ages of the world by great, good, and learned men, can fail to know that the laws of war constitute a part of the law of nations, and that those laws have been prescribed with tolerable accuracy. Congress can declare war. When war is declared it must be under the Constitution, carried on according to the known usages and laws of war among civilized nations. Under the power to define these laws, Congress cannot abrogate them, or authorize their infraction.