THE POWER TO DECLARE WAR AND MAKE CAPTURES.
§ 1163. THE next
power of congress is to "declare war, grant letters of marque and reprisal,
and make rules concerning captures on land and water."
§ 1164. A similar exclusive power was given
to congress by the confederation. 1 That
such a power ought to exist in the national government, no one will deny, who
believes, that it ought to have any powers whatsoever, either for offence or
defence, for the common good, or for the common protection. It is, therefore,
wholly superfluous to reason out the propriety of granting the power.
2 It is self-evident, unless the
national government is to be a mere mockery and shadow. The power could not be
left without extreme mischief, if not absolute ruin, to the separate authority
of the several states; for then it would be at the option of any one to involve
the whole in the calamities and burthens of warfare. 3
In the general government it is safe, because there it can be declared only by
the majority of the states.
§ 1165. The only practical question upon
this subject would seem to be, to what department of the national government it
would be most wise and safe to confide this high prerogative, emphatically
called the last resort of sovereigns, ultima ratio regum. In Great
Britain it is the exclusive prerogative of the crown; 4
and in other countries, it is usually, if not universally confided to the
executive department. It might by the constitution have been confided to the
executive, or to the senate, or to both conjointly.
§ 1166. In the plan offered by an eminent
statesman in the convention, it was proposed, that the senate should have the
sole power of declaring war. 5 The
reasons, which may be urged in favour of such an arrangement, are, that the
senate would be composed of representatives of the states, of great weight,
sagacity, and experience, and that being a small and select body, promptitude of
action, as well as wisdom, and firmness, would, as they ought, accompany the
possession of the power. Large bodies necessarily move slowly; and where the
co-operation of different bodies is required, the retardation of any measure
must be proportionally increased. In the ordinary course of legislation this may
be no inconvenience. But in the exercise of such a prerogative, as declaring
war, despatch, secrecy, and vigour are often indispensable, and always useful
towards success. On the other hand it may be urged in reply, that the power of
declaring war is not only the highest Sovereign prerogative; but that it is in
its own nature and effects so critical and calamitous, that it requires the
utmost deliberation, and the successive review of all the councils of the
nation. War, in its best estate, never fails to impose upon the people the most
burthensome taxes, and personal sufferings. It is always injurious, and
sometimes subversive of the great commercial, manufacturing, and agricultural
interests. Nay, it always involves the prosperity, and not unfrequently the
existence, of a nation. It is sometimes fatal to public liberty itself, by
introducing a spirit of military glory, which is ready to follow, wherever a
successful commander will lead; and in a republic, whose institutions are
essentially founded on the basis of peace, there is infinite danger, that war
will find it both imbecile in defence, and eager for contest. Indeed, the
history of republics has but too fatally proved, that they are too ambitious of
military fame and conquest, and too easily devoted to the views of demagogues,
who flatter their pride, and betray their interests. It should therefore be
difficult in a republic to declare war; but not to make peace. The
representatives of the people are to lay the taxes to support a war, and
therefore have a right to be consulted, as to its propriety and necessity. The
executive is to carry it on, and therefore should be consulted, as to its time,
and the ways and means of making it effective. The co-operation of all the
branches of the legislative power ought, upon principle, to be required in this
the highest act of legislation, as it is in all others. Indeed, there might be a
propriety even in enforcing still greater restrictions, as by requiring a
concurrence of two thirds of both houses. 6
§ 1167. This reasoning appears to have had
great weight with the convention, and to have decided its choice. Its judgment
has hitherto obtained the unqualified approbation of the country.
§ 1168. In the convention, in the first
draft of the constitution, the power was given merely "to make war."
It was subsequently, and not without some struggle, altered to its present form.
9 It was proposed to add the power "to
make peace;" but this was unanimously rejected; 10
upon the plain ground, that it more properly belonged to the treaty-making
power. The experience of congress, under the confederation, of the difficulties,
attendant upon vesting the treaty-making power in a large legislative body, was
too deeply felt to justify the hazard of another experiment. 11
§ 1169. The power, to declare war may be
exercised by congress, not only by authorizing general hostilities, in which
case the general laws of war apply to our situation; or by partial hostilities,
in which case the laws of war, so far as they actually apply to our situation,
are to be observed. 12 The former course
was resorted to in our war with Great Britain in 1812, in which congress
enacted, "that war be, and hereby is declared to exist, between the United
Kingdom of Great Britain and Ireland and the dependencies thereof, and the
United States of America and their territories." 13
The latter course was pursued in the qualified war of 1798 with France, which
was-regulated by divers acts of congress, and of course was confined to the
limits prescribed by those acts. 14
§ 1170. The power to declare war would of
itself carry the incidental power to grant letters of marque and reprisal, and
make rules concerning captures. It is most probable, that an extreme solicitude
to follow out the powers enumerated in the confederation occasioned the
introduction of these clauses into the Constitution. In the former instrument,
where all powers, not expressly delegated, were prohibited, this
enumeration was peculiarly appropriate. But in the latter, where incidental
powers were expressly contemplated, and provided for, the same necessity did not
exist. As has been already remarked in another place, and will abundantly appear
from the remaining auxiliary clauses to the power to declare war, the
constitution abounds with pleonasms and repetitions, sometimes introduced from
caution, sometimes from inattention, and sometimes from the imperfections of
§ 1171. But the express power "to
grant letters of marque and reprisal" may not have been thought wholly
unnecessary, because it is often a measure of peace, to prevent the necessity of
a resort to war. Thus, individuals of a nation sometimes suffer from the
depredations of foreign potentates; and yet it may not be deemed either
expedient or necessary to redress such grievances by a general declaration of
war. Under such circumstances the law of nations authorizes the sovereign of the
injured individual to grant him this mode of redress, whenever justice is denied
to him by the state, to which the party, who has done the injury, belongs. In
this case the letters of marque and reprisal (words used as synonymous, the
latter (reprisal) signifying, a taking in return, the former (letters of marque)
the passing the frontiers in order to such taking,) contain an authority to
seize the bodies or goods of the subjects of the offending state, wherever they
may be found, until satisfaction is made for the injury. 16
This power of reprisal seems indeed to be a dictate almost of nature itself, and
is nearly related to, and plainly derived from that of making war. It is only an
incomplete state of hostilities, and often ultimately leads to a formal
denunciation of war, if the injury is unredressed, or extensive in its
§ 1172. The power to declare war is
exclusive in congress; and (as will be hereafter seen,) the states are
prohibited from engaging in it, unless in cases of actual invasion or imminent
danger thereof. It includes the exercise of all the ordinary rights of
belligerents; and congress may therefore pass suitable laws to enforce them.
They may authorize the seizure and condemnation of the property of the enemy
within, or without the territory of the United States; and the confiscation of
debts due to the enemy. But, until laws have been passed upon these subjects, no
private citizens can enforce any such rights; and the judiciary is incapable of
giving them any legitimate operation. 18
§ 1173. The next power of congress is, "to
raise and support armies; but no appropriation of money to that use shall be for
a longer term than two years."
§ 1174. The power to raise armies is an
indispensable incident to the power to declare war; and the latter would be
literally brutum fulmen without the former, a means of mischief without
a power of defence. 19 Under the
confederation congress possessed no power whatsoever to raise armies; but only "to
agree upon the number of land forces, and to make requisitions from each state
for its quota, in proportion to the number of white inhabitants in such state;"
which requisitions were to be binding; and thereupon the legislature of each
state were to appoint the regimental officers, raise the men, and clothe, arm,
and equip them in a soldier-like manner, at the expense of the United States.
20 The experience of the whole country,
during the revolutionary war, established, to the satisfaction of every
statesman, the utter inadequacy and impropriety of this system of requisition.
It was equally at war with economy, efficiency, and safety. 21
It gave birth to a competition between the states, which created a kind of
auction of men. In order to furnish the quotas required of them, they outbid
each other, till bounties grew to an enormous and insupportable size. On this
account many persons procrastinated their enlistment, or enlisted only for short
periods. Hence, there were but slow and scanty levies of men in the most
critical emergencies of our affairs; short enlistments at an unparalleled
expense; and continual fluctuations in the troops, ruinous to their discipline,
and subjecting the public safety frequently to the perilous crisis of a
disbanded army. Hence also arose those oppressive expedients for raising men,
which were occasionally practised, and which nothing, but the enthusiasm of
liberty, could have induced the people to endure. 22
The burthen was also very unequally distributed. The states near the seat of
war, influenced by motives of self-preservation, made efforts to furnish their
quotas, which even exceeded their abilities; while those at a distance were
exceedingly remiss in their exertions. In short, the army was frequently
composed of three bodies of men; first, raw recruits; secondly, persons, who
were just about completing their term of service; and thirdly, of persons, who
had served out half their term, and were quietly waiting for its determination.
Under such circumstances, the wonder is not, that its military operations were
tardy, irregular, and often unsuccessful; but, that it was ever able to make
head-way at all against an enemy, possessing a fine establishment, well
appointed, well armed, well clothed, and well paid. 23
The appointment, too, by the states, of all regimental officers, had a tendency
to destroy all harmony and subordination, so necessary to the success of
§ 1175. There is great wisdom and propriety
in relieving the government from the ponderous and unwieldy machinery of the
requisitions and appointments under the confederation. The present system of the
Union is general and direct, and capable of a uniform organization and action.
It is essential to the common defence, that the national government should
possess the power to raise armies; build and equip fleets; prescribe rules for
the government of both; direct their operations; and provide for their support.
§ 1176. The clause, as originally reported,
was "to raise armies;" and subsequently it was, upon the report of a
committee, amended, so as to stand in its present form; and as amended it seems
to have encountered no opposition in the convention. 25
It was, however, afterwards assailed in the state conventions, and before the
people, with incredible zeal and pertinacity, as dangerous to liberty, and
subversive of the state governments. Objections were made against the general
and indefinite power to raise armies, not limiting the number of troops; and to
the maintenance of them in peace, as well as in war.
§ 1177. It was said, that congress, having
an unlimited power to raise and support armies, might, if in their opinion the
general welfare required it, keep large armies constantly on foot, and thus
exhaust the resources of the United States. There is no control on congress, as
to numbers, stations, or government of them. They may billet them on the people
at pleasure. Such an unlimited authority is most dangerous, and in its
principles despotic; for being unbounded, it must lead to despotism. We shall,
therefore, live under a government of military force. 26
In respect to times of peace, it was suggested, that there is no necessity for
having a standing army, which had always been held, under such circumstances, to
be fatal to the public rights and political freedom. 27
§ 1178. To these suggestions it was
replied, with equal force and truth, that to be of any value, the power must be
unlimited. It is impossible to foresee, or define the extent and variety of
national exigencies, and the correspondent extent and variety of the national
means necessary to satisfy them. The power must be co-extensive with all
possible combinations of circumstances, and under the direction of the councils
entrusted with the common defence. To deny this would be to deny the means, and
yet require the end. These must, therefore, be unlimited in every matter
essential to its efficacy, that is, in the formation, direction, and support of
the national forces. 28 This was not
doubted under the confederation; though the mode adopted to carry it into effect
was utterly inadequate and illusory. 29
There could be no real danger from the exercise of the power. It was not here,
as in England, where the executive possessed the power to raise armies at
pleasure; which power, so far as respected standing armies in time of peace, it
became necessary to provide by the bill of rights, in 1688, should not be
exercised without the consent of parliament. 30
Here the power is exclusively confined to the legislative body, to the
representatives of the states, and of the people of the states. And to suppose
it will not be safe in their hands, is to suppose, that no powers of government,
adapted to national exigencies, can ever be safe in any political body.
31 Besides, the power is limited by the
necessity (as will be seen) of biennial appropriations. 32
The objection, too, is the more strange, because there are but two constitutions
of the thirteen states, which attempt in any manner to limit the power; and
these are rather cautions for times of peace, than prohibitions. 33
The confederation itself contains no prohibition or limitation of the power.
34 Indeed, in regard to times of war, it
seems utterly preposterous to impose any limitations upon the power; since it is
obvious, that emergencies may arise, which would require the most various, and
independent exercises of it. The country would otherwise be in danger of losing
both its liberty and its sovereignty, from its dread of investing the public
councils with the power of defending it. It would be more willing to submit to
foreign conquest, than to domestic rule.
§ 1179. But in times of peace the power may
be at least equally important, though not so often required to be put in full
exercise. The United States are surrounded by the colonies and dependencies of
potent foreign governments, whose maritime power may furnish them with the means
of annoyance, and mischief, and invasion. To guard ourselves against evils of
this sort, it is indispensable for us to have proper forts and garrisons,
stationed at the weak points, to overawe or check incursions. Besides; it will
be equally important to protect our frontiers against the Indians, and keep them
in a state of due submission and control. 35
The garrisons can be furnished only by occasional detachments of militia, or by
regular troops in the pay of the government. The first would be impracticable,
or extremely inconvenient, if not positively pernicious. The militia would not,
in times of profound peace, submit to be dragged from their occupations and
families to perform such a disagreeable duty. And if they would, the increased
expenses of a frequent rotation in the service; the loss of time and labour; and
the breaking up of the ordinary employments of life; would make it an extremely
ineligible scheme of military power. The true and proper recourse should,
therefore, be to a permanent, but small standing army for such purposes.
36 And it would only be, when our
neighbours should greatly increase their military force, that prudence and a due
regard to our own safety would require any augmentation of our own.
37 It would be wholly unjustifiable to
throw upon the states the defence of their own frontiers, either against the
Indians, or against foreign foes. The burthen would often be disproportionate to
their means, and the benefit would often be largely shared by the neighbouring
states. The common defence should be provided for out of the common treasury.
The existence of a federal government, and at the same time of military
establishments under state authority, are not less at variance with each other,
than a due supply of the federal treasury, and the system of quotas and
§ 1180. It is important also to consider,
that the surest means of avoiding war is to be prepared for it in peace. If a
prohibition should be imposed upon the United States against raising armies in
time of peace, it would present the extraordinary spectacle to the world of a
nation incapacitated by a constitution of its own choice from preparing for
defence before an actual invasion. As formal denunciations of war are in modern
times often neglected, and are never necessary, the presence of an enemy within
our territories would be required, before the government would be warranted to
begin levies of men for the protection of the state. The blow must be received,
before any attempts could be made to ward it off, or to return it. Such a course
of conduct would at all times invite aggression and insult; and enable a
formidable rival or secret enemy to seize upon the country, as a defenseless
prey; or to drain its resources by a levy of contributions, at once irresistible
and ruinous. 39 It would be in vain to
look to the militia for an adequate defence under such circumstances. This
reliance came very near losing us our independence, and was the occasion of the
useless expenditure of many millions. The history of other countries, and our
past experience, admonish us, that a regular force, well disciplined and well
supplied, is the cheapest, and the only effectual means of resisting the inroads
of a well disciplined foreign army. 40
In short, under such circumstances the constitution must be either violated, (as
it in fact was by the states under the confederation, 41)
or our liberties must be placed in extreme jeopardy. Too much precaution often
leads to as many difficulties, as too much confidence. How could a readiness for
war in time of peace be safely prohibited, unless we could in like manner
prohibit the preparations and establishments of every hostile nation? The means
of security can be only regulated by the means and the danger of attack. They
will, in fact, ever be determined by these rules, and no other. It will be in
vain to oppose constitutional barriers to the impulse of self-preservation.
§ 1181. But the dangers from abroad are not
alone those, which are to be guarded against in the structure of the national
government. Cases may occur, and indeed are contemplated by the constitution
itself to occur, in which military force may be indispensable to enforce the
laws, or to suppress domestic insurrections. Where the resistance is confined to
a few insurgents, the suppression may be ordinarily, and safely confided to the
militia. But where it is extensive, and especially if it should pervade one, or
more states, it may become important and even necessary to employ regular
troops, as at once the most effective, and the most economical force.
43 Without the power to employ such a
force in time of peace for domestic purposes, it is plain, that the government
might be in danger of being overthrown by the combinations of a single faction.
§ 1182. The danger of an undue exercise of
the power is purely imaginary. It can never be exerted, but by the
representatives of the people of the states; and it must be safe there, or there
can be no safety at all in any republican form of government. 45
Our notions, indeed, of the dangers of standing armies in time of peace, are
derived in a great measure from the principles and examples of our English
ancestors. In England, the king possessed the power of raising armies in the
time of peace according to his own good pleasure. And this prerogative was
justly esteemed dangerous to the public liberties. Upon the revolution of 1688,
parliament wisely insisted upon a bill of rights, which should furnish an
adequate security for the future. But how was this done? Not by prohibiting
standing armies altogether in time of peace; but (as has been already seen) by
prohibiting them without the consent of parliament. 46
This is the very proposition contained in the constitution; for congress can
alone raise armies; and may put them down, whenever they choose.
§ 1183. It may he admitted, that standing
armies may prove dangerous to the state. But it is equally true, that the want
of them may also prove dangerous to the state. What then is to be done? The true
course is to check the undue exercise of the power, not to withhold it.
47 This the constitution has attempted
to do by providing, that "no appropriation of money to that use shall be
for a longer term than two years." Thus, unless the necessary supplies are
voted by the representatives of the people every two years, the whole
establishment must fall. Congress may indeed, by an act for this purpose,
disband a standing army at any time; or vote constitution only for one year, or
for a shorter period. But the constitution is imperative, that no appropriation
shall prospectively reach beyond the biennial period. So that there would seem
to be every human security against the possible abuse of the power.
§ 1184. But, here again it was objected,
that the executive might keep up a standing army in time of peace,
notwithstanding no supplies should be voted. But how can this possibly be done?
The army cannot go without supplies; it may be disbanded at the pleasure of the
legislature; and it would be absolutely impossible for any president, against
the will of the nation, to keep up a standing army in terrorem populi.
§ 1185. It was also asked, why an
appropriation should not be annually made, instead of biennially, as is the case
in the British parliament.
50 The answer is, that congress may in
their pleasure limit the appropriation to a single year; but exigencies may
arise, in which, with a view to the advantages of the public service and the
pressure of war, a biennial appropriation might be far more expedient, if not
absolutely indispensable. Cases may be supposed, in which it might be
impracticable for congress, in consequence of public calamities, to meet
annually for the despatch of business. But the supposed example of the British
parliament proves nothing. That body is not restrained by any constitutional
provision from voting supplies for a standing army for an unlimited period. It
is the mere practice of parliament, in the exercise of its own discretion, to
make an annual vote of supplies. Surely, if there is no danger in confiding an
unlimited power of this nature to a body chosen for seven years, there can be
none in confiding a limited power to an American congress, chosen for two years.
§ 1186. In some of the state conventions an
amendment was proposed, requiring, that no standing army, or regular forces be
kept up in time of peace, except for the necessary protection and defence of
forts, arsenals, and dockyards, without the consent of two thirds of both houses
of congress. 52 But it was silently
suffered to die away with the jealousies of the day. The practical course of the
government on this head has allayed all fears of the people, and fully justified
the opinions of the friends of the constitution. It is remarkable, that scarcely
any power of the national government was at the time more strongly assailed by
appeals to popular prejudices, or vindicated with more full and masculine
discussion. The Federalist gave itconstitutionorate discussion, as one of the
critical points of the constitution. 53
In the present times the subject attracts no notice, and would scarcely furnish
a topic, even for popular declamation. Ever since the constitution was put into
operation, congress have restrained their appropriations to the current year;
and thus practically shown the visionary nature of these objections.
§ 1187. Congress in 1798, in expectation of
a war with France, authorized the president to accept the services of any
companies of volunteers, who should associate themselves for the service, and
should be armed, clothed, and equipped at their own expense, and to commission
their officers. 54 This exercise of
power was complained of at the time, as a virtual infringement of the
constitutional authority of the states in regard to the militia; and, as such,
it met with the disapprobation of a learned commentator. 55
His opinion does not, however, seem since to have received the deliberate assent
of the nation. During the late war with Great Britain, laws were repeatedly
passed, authorizing the acceptance of volunteer corps of the militia under their
own officers; and eventually, the president was authorized, with the consent of
the senate, to commission officers for such volunteer corps. These laws exhibit
the decided change of the public opinion on this subject; and they deserve more
attention, since the measures were promoted and approved under the auspices of
the very party, which had inculcated an opposite opinion. 56
It is proper to remark, that the Federalist maintained, that the disciplining
and effective organization or the whole militia would be impracticable; that the
attention or the government ought particularly to be directed to the formation
or a select corps of moderate size, upon such principles, as would really fit
them for service in case or need; and that such select corps would constitute
the best substitute for a large standing army, and the most formidable check
upon any undue military powers; since it would be composed or citizens well
disciplined, and well instructed in their rights and duties. 57
§ 1188. The next power or congress is "to
provide and maintain a navy."
§ 1189. Under the confederation congress
possessed the power "to build and equip a navy." 58
The same language was adopted in the original draft of the constitution; and it
was amended by substituting the present words, apparently without objection, as
more broad and appropriate. 59 In the
convention, the propriety or granting the power seems not to have been
questioned. But it was assailed in the state conventions as dangerous. It was
said, that commerce and navigation are the principal sources or the wealth or
the maritime powers or Europe; and if we engaged in commerce, we should soon
become their rivals. A navy would soon be thought indispensable to protect it.
But the attempt on our part to provide a navy would provoke these powers, who
would not suffer us to become a naval power. Thus, we should be immediately
involved in wars with them. The expenses, too, of maintaining a suitable navy
would be enormous; and wholly disproportionate to our resources. If a navy
should be provided at all, it ought to be limited to the mere protection of our
trade. 60 It was further urged, that the
Southern states would share a large portion of the burthens of maintaining a
navy, without any corresponding advantages. 61
§ 1190. With the nation at large these
objections were not deemed of any validity. The necessity of a navy for the
protection of commerce and navigation was not only admitted, but made a strong
ground for the grant of the power. One of the great objects of the constitution
was the encouragement and protection of navigation and trade. Without a navy, it
would be utterly impossible to maintain our right to the fisheries, and our
trade and navigation on the lakes, and the Mississippi, as well as our foreign
commerce. It was one of the blessings of the Union, that it would be able to
provide an adequate support and protection for all these important objects.
Besides; a navy would be absolutely indispensable to protect our whole Atlantic
frontier, in case of a war with a foreign maritime power. We should otherwise be
liable, not only to the invasion of strong regular forces of the enemy; but to
the attacks and incursions of every predatory adventurer. Our maritime towns
might all be put under contribution; and even the entrance and departure from
our own ports be interdicted at the caprice, or the hostility of a foreign
power. It would also be our cheapest, as well as our best defence; as it would
save us the expense of numerous forts and garrisons upon the seacoast, which,
though not effectual for all, would still be required for some purposes. In
short, in a maritime warfare without this means of defence, our commerce would
be driven from the ocean, our ports would be blockaded, our sea-coast infested
with plunderers, and our vital interests put at hazard. 62
§ 1191. Although these considerations were
decisive with the people at large in favour of the power, from its palpable
necessity and importance to all the great interests of the country, it is within
the memory of all of us, that the same objections for a long time prevailed with
a leading party in the country, 63 and
nurtured a policy, which was utterly at variance with our duties, as well as our
honour. It was not until during the late war with Great Britain, when our little
navy, by a gallantry and brilliancy of achievement almost without parallel, had
literally fought itself into favour, that the nation at large began to awake
from its lethargy on this subject, and to insist upon a policy, which should at
once make us respected and formidable abroad, and secure protection and honour
at home. 64 It has been proudly said by
a learned commentator on the laws of England, that the royal navy of England
hath ever been its greatest defence and ornament. It is its ancient and natural
strength; the floating bulwark of the island; an army, from which, however
strong and powerful, no danger can be apprehended to liberty. 65
Every American citizen ought to cherish the same sentiment, as applicable to the
navy of his own country.
§ 1192. The next power of congress is "to
make rules for the government and regulation of the land and naval forces."
This is a natural incident to the preceding powers to make war, to raise armies,
and to provide and maintain a navy. Its propriety, therefore, scarcely could be,
and never has been denied, and need not now be insisted on. The clause was not
in the original draft of the constitution; but was added without objection by
way of amendment. 66 It was without
question borrowed from a corresponding clause in the articles of confederation,
67 where it was with more propriety
given, because there was a prohibition of all implied powers. In Great Britain,
the king, in his capacity of generalissimo of the whole kingdom, has the sole
power of regulating fleets and armies. 68
But parliament has repeatedly interposed; and the regulation of both is now in a
considerable measure provided for by acts of parliament. 69
The whole power is far more safe in the hands of congress, than of the
executive; since otherwise the most summary and severe punishments might be
inflicted at the mere will of the executive.
§ 1193. It is a natural result of the
sovereignty over the navy of the United States, that it should be exclusive.
Whatever crimes, therefore, are committed on board of public, ships of war of
the United States, whether they are in port or at sea, they are exclusively
cognizable and punishable by the government of the United States. The public
ships of sovereigns, wherever they may be, are deemed to be extraterritorial,
and enjoy the immunities from the local jurisdiction belonging to their
1. Art. 9; The Federalist, No. 41.
2. See The Federalist, No. 23, 41.
3. 1 Tucker's Black. Comm. App. 271.
4. 1 Black. Comm. 257, 258.
5. Mr. Hamilton's Plan, Journal of
Convention, p. 131.
6. Several of the states proposed an
amendment to the constitution to this effect. But it was never adopted by a
majority. 7 Under the confederation, the
assent of nine states was necessary to a declaration of war, (Art. 9.)
7. 1 Tucker's Black. Comm. App. 271,
8. 1 Tucker's Black. Comm. App. 269 to
272; Rawle on the Const. ch. 9, p. 109.
9. Journal of Convention, 221,258, 259,
10. Ibid, 259.
11. The Federalist, No. 64. See also
Rawle on the Const. ch. 9, p. 110; North Amer; Rev. Oct. 1827, p. 263.
12. Talbot v. Seeman, 1 Cranch's
R. 1, 28; Bas v. Tingey, 4 Dall. 37.
13. Act of 1812, ch. 102.
14. Rawle on the Const. ch. 9, p. 109;
Sergeant on Const. ch. 28, [ch. 30;]
Bas v. Tingey, 4 Dall. R. 37.
15. See Mr. Madison's Letter to Mr.
Cabell., 18th Sept. 1828.
16. 1 Black. Comm. 258, 259.
17. 1 Black: Comm. 258, 259; Bynkershoek
on War, ch. 24, p. 182, by Duponceau; Valin Traite des Prises, p. 223, 321; 1
Tuck. Black. Comm. App. 271; 4 Elliot's Deb. 251.
18. Brown v. United States, 8
Cranch's R. 1.
19. 4 Elliot's Deb. 220, 221.
20. Art. 9; Art. 7.
21. 1 American Museum, 270, 273, 283; 5
Marshall's Life of Washington, App. note 1.
22. The Federalist, No. 22, 23. —
The difficulties connected with this subject will appear still more striking in
a practical view from the letters of General Washington, and other public
documents at the period. See 5 Marshall's Life of Washington, ch. 3, p. 125,
126; ch. 5, p. 212 to 220; ch. 6, p. 238 to 248. See 6 Journals of Congress in
1780 passim. Circular Letter of Congress, in May, 1779; 5 Jour. of Cong. 224 to
23. The Federalist, No. 22, 23.
24. The Federalist, No. 23; 2 Elliot's
Debates, 92, 91.
25. Journal of Convention, 221, 327,
26. 2 Elliot's Debates, 285, 286, 307,
27. 2 Elliot's Debates, 307, 308, 430.
28. The Federalist, No. 23; 2 Elliot's
Debates, 92, 93, 438.
29. 2 Elliot's Debates, 438.
30. 1 Black. Comm. 262, 413.
31. The Federalist, No. 23, 26.
32. The Federalist, No. 24, 25.
33. The Federalist, No. 24, and note;
Id. No. 26.
34. The Federalist, No. 24; 2 Elliot's
35. The Federalist, No. 24, 25; 2
Elliot's Debates, 292, 293.
36. The Federalist, No. 24; 2 Elliot's
Debates, 292, 293.
37. The Federalist, No. 24, 41.
38. Id. No. 25.
39. The Federalist, No. 25; 2 Elliot's
Debates, 92, 93.
40. The Federalist, No. 25, 41.
41. Id. 25.
42. The Federalist, No. 41; 3 Elliot's
43. The Federalist, No. 28, 26.
44. 2 Elliot's Debates, 92, 93.
45. 3 The Federalist, No. 98, 26, 98.
46. The Federalist, No. 26; 1 Black.
47. The Federalist, No. 41; 2 Elliot's
Debates, 93, 308, 309.
48. The Federalist, No. 26, 41.
49. The Federalist, No. 26.
50. 1 Tucker's Black. Comm, App. 272; 1
Black. Comm. 414, 415.
51. The Federalist, No. 41.
52. 1 Tucker's Black. Comm. App. 271,
272, 379. — An attempt was also made in the convention, to insert a clause,
limiting the number of the army in time of peace to a — number; but it was
negatived. Journal of Convention, p. 262.
53. The Federalist, No. 24 to 29.
54. Act of 28th of May, 1798, ch. 64;
Act of 22d of June, 1798, ch. 74; Act of 2d of March, 1799, ch. 187.
55. 1 Tucker's Black. Comm. App. 273,
274, 329, 330. See also Virginia Report and Resolutions, 9th of January, 1800,
p. 53 to 56.
56. See Act of 8th of Feb. 1812, ch. 22;
Act of 6th of July, 1812, ch. 538; Act of 24th of Feb. 1814, ch. 75; Act of 30th
of March, 1814, ch. 96; Act of 27th of Jan. 1815, ch. 178. See also Act of 24th
of Feb. 1807, ch. 70.
57. The Federalist, No. 29.
58. Art. 9.
59. Journ. of Convention, 221, 262.
60. 2 Elliot's Deb. 224, 319, 320.
61. 2 Elliot's Deb. 319, 320.
62. The Federalist, No. 11, 24, 41. See
also 1 Tucker's Black. Comm. App. 272.
63. See 5 Marshall's Life of Washington,
ch. 7, p. 523 to 531.
64. Lest it should be supposed, that
these remarks are not well founded, the following passage is extracted from the
celebrated Report and Resolutions of the Virginia legislature, of 7th and 11th
Jan. 1800, which formed the text-book of many political opinions for a long
period. "With respect to the navy, it may be proper to remind you, that
whatever may be the proposed object of its establishment, or whatever the
prospect of temporary advantages resulting therefrom, it is demonstrated. by the
experience of all nations, who have adventured far into naval policy, that such
prospect is ultimately delusive; and that a navy has ever in practice been known
more as an instrument of power, a source of expense, and an occasion of
collisions and wars with other nations, than as an instrument of defence, of
economy, or of protection to commerce. Nor is there any nation, in the judgment
of the general assembly, to whose circumstances this remark is more applicable,
than to the United States." p. 57, 58. And the senators and representatives
were instructed and requested by one of the resolutions "to prevent any
augmentation of the navy, and to promote any proposition for reducing it, as
circumstances will permit, within the narrowest limits compatible with the
protection of the sea-coasts, ports, and harbours of the United States." p.
65. 1 Black. Comm. 418.
66. Journal of Convention, p. 221, 262.
67. Art. 9.
68. 1 Black. Comm. 262, 421.
69. 1 Black. Comm. 413, 414, 415, 420,
70. See United States v. Bevans,
3 Wheaton's R. 336, 390. The Schr. Exchange, 7 Cranch's R. 116.
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