CHAPTER XVI.

Declaration of War-Marque and Reprisal-Captures

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Army and Navy.

power,

"To declare war,

§388. CONGRESS shall have grant letters of marque and reprisal, and make rules con"cerning captures on land and water."-Art. 1, sec. 8, cl. 11.

§ 389. That self-preservation, or the right of self-defence, is the first law of nature, is a principle that has received the general assent of mankind. It is upon this principle that nations justify themselves in resisting the aggressions of other nations. Accordingly the power has been given to congress to declare war. A just defence, or making use of force against any power that attacks a nation or its privileges, is defensive war. To obtain justice by force, if it cannot be otherwise obtained, or to pursue our right by force of arms, is offensive war.

§ 390. But there are cases which, by the law of nations, constitute justifiable causes of war, when neither good policy nor the honor of a nation requires such a measure. War is at all times productive of great evils; and both wisdom and humanity forbid a recourse to war to redress wrongs in ordinary cases. The true honor and dignity of a nation are not most effectually sustained by a resort to arms upon every occasion of even real injury.

§ 391. The power to declare war is, in some countries, exercised by the supreme ruler. But this is too vast a power to be safely intrusted to a single individual, who, from a mistaken sense of national honor, or from selfish motives, may expose the lives and liberties of a whole people. In the United States this power is committed to the represent. atives of those who have to bear the burthens of war.

§ 392. The power of issuing letters of marque and re

§ 388, 389. On what principle is the war power founded? What is offensive war? § 390. Should war always be resorted to on osCELIOTS of injury? 391. Why is the power to declare war given to con. gress? § 392. What means marque and reprisal? § 393, 394. What

prisal also is given to congress. Marque signifies passing the frontier; reprisal, the taking in return. Letters of marque and reprisal are a license given to the subjects of one nation who have been injured by those of another nation, to seize the bodies or goods of the citizens of such offending nation wheresoever they may be found, until satisfaction be made. This measure is sometimes taken to prevent the necessity of a resort to war to obtain satisfaction for in. juries; but its natural tendency is to provoke open hostilities between nations, rather than to prevent them. Were each individual permitted to act as judge in his own case, in re. dressing his private wrongs, the dangers of war would be increased: the power, therefore, is properly vested in con. gress.

§ 393. Connected with the power of declaring war, is the power to make rules concerning captures. By the law of nations, no individual has any interest in a prize, whether made by a public or private armed vessel, but what he re. ceives under the grant of the government. The general practice is to distribute the proceeds of the captured property, when duly passed upon and condemned as a prize, among the captors as a reward for bravery and a stimulus to exertion. But the courts have no power of condemnation till the legislative will be expressly declared.

§ 394. The district courts of the United States have cog. nizance of complaints in cases of capture made within the United States, or within a marine league of the coast or shore thereof. They have exclusive cognizance of all seiz. ures on land, and on waters other than those navigable by vessels of ten or more tons burthen, within their respective districts, or on the high seas. War gives a nation the right to take the persons, and confiscate the property of the ene. my, wheresoever they may be found.

§395. Congress shall have power, "To raise and support "armies; but no appropriation of money for that use shall "be for a longer term than two years."—Art. 1, sec. 8, cl. 12.

§ 396. The want of power in congress to raise troops

are captures? How is captured property disposed of? § 395. How is the power of congress to support armies limited? § 396. Why is the

was. as has been remarked, one of the principal defects of the confederation. Congress could declare war; but it had not the power to compel the states to comply with its requi. sitions for men and money to carry on the war. Hence the necessity of placing this power in the same hands.

peace,

§ 397. It is the general policy of nations, in time of to prepare for war. A constant preparation for defence is deemed the surest means of preventing the attacks of an enemy. One of the means provided for the national defence and safety, is a standing army. A standing army is a large number of armed soldiers, kept constantly in pay, and ready for action. Standing armies are by many regarded with jealousy, as being dangerous to liberty. But the distance of this country from the powerful nations of the world, ren. ders an extensive peace establishment unnecessary. The standing army of the United States consists of several (for. merly six) thousand men, distributed among the several forts and arsenals. J.

§ 398. But the constitution has very prudently added a precaution against danger from standing armies. An army can be sustained only so long as money is appropriated for its support; and appropriations for this purpose can be made for the term of two years only; at the expiration of which, the people, through their representatives, may destroy the army, by withholding the means of its subsistence.

§399. Congress shall have power, " To maintain a navy." -Art. 1, sec. 8, cl. 13.

§ 400. A navy means the ships of war that belong to a nation. A navy is generally supposed to be a safer and more effective means of national defence. An efficient navy is the principal source of security against dangers from abroad. There could be no safety to the inhabitants on a maritime frontier without naval protection; and a navy is especially necessary to protect our commerce and navigation.

401. Congress shall have power, "To make rules for "the government and regulation of the land and naval "forces."-Art. 1, sec. 8, cl. 14.

power given to congress? § 397. What is a standing army? § 398. How does the constitution guard against the danger of standing armies? § 400. What is a navy? What is its object? § 403. For

§ 402. This power, being connected with or implied in the foregoing, is consequently exercised by congress. In pursuance of this power, and of the other powers of a simi. lar nature, the departments of war and the navy have been established by congress.

§ 403. Congress shall have power, "To provide for call. "ing forth the militia to execute the laws of the union, suppress insurrections, and repel invasions."-Art. 1, sec. 8, cl. 15.

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§ 404. To keep up a standing army, distributed throughout the union in portions of sufficient strength to be adequate to these purposes, would be both unsafe and very expensive. The provision made for these objects in this clause of the constitution, while it is safe and economical, is equally effective. In pursuance of this power, congress has by law authorized the president to call out the militia, whenever he shall judge it to be necessary, to repel invasions, or to suppress insurrections, within the United States. This power is properly committed to the executive, as it is to be exercised upon sudden emergencies, and when the action of congress may not be had on the subject.

§ 405. Congress shall have power, "To provide for or"ganizing, arming, and disciplining the militia, and for gov. erning such part of them as may be employed in the ser "vice of the United States; reserving to the states, respect"ively, the appointment of the officers, and the authority of "training the militia according to the discipline prescribed "by congress."—Art. 1, sec. 8, cl. 16.

$406. Uniformity in the organization, arming, and disci. pline of the militia, was deemed important; and this could be effected only by intrusting their regulation to congress. But to have placed the military force under the entire control of the national officers, would have rendered the states dependent on the general government for their own defence.

§ 407. The law prescribes the manner in which the militia is to be organized, armed, disciplined, and governed; and

what purposes may the militia be called forth? § 404. Why is this preferable to a standing army? § 405. What power do congress and the states respectively exercise in organizing and disciplining the militia? 406. Why is this power thus divided? § 407. When is the

it provides for drafting, detaching, and calling forth the quotas, or shares to be furnished by the respective states, when required by the president. The militia, when called out, are subject to the rules of war; and the law imposes a fine upon every delinquent, to be adjudged by a court martial composed of militia officers only, and held in the manner prescribed by the articles of war. The militia are not considered to be in the service of the United States until they are mustered at the place of rendezvous; after which the state government has no authority over them.

§ 408. Every free, able-bodied white male citizen, of the age of eighteen, and under forty-five years, is liable to do military duty, except such as are by law exempted from the same. Persons exempted by the law of the United States, are, the vice president and all executive and judicial officers of the government of the United States; members and offi. cers of both houses of congress; all custom house officers with their clerks; all post officers and drivers of mail stages; ferrymen employed at ferries on post roads; all pilots and mariners; together with all persons excmpted by the laws of the respective states.

CHAPTER XVII.

Local Jurisdiction-District of Columbia, and other National Property.

§409. Congress shall have power, "To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of congress, become "the seat of the government of the United States; and to "exercise like authority over all places purchased by the

militia considered in the service of the United States? § 408. What persons are subject to military duty? Who are exempt?

§ 409. Where has congress exclusive legislation? ́§ 410. Why is