against the law of nations. The committee of detail had authorized Congress "to declare the law and punishment of piracies and felonies committed on the high seas,. . . . . and of offences against the law of nations." The expression to "declare the law," &c. was changed to the words "define and punish," for the following reason. Piracy is an offence defined by the law of nations, and also by the common law of England. But in those codes a single crime only is designated by that term.1 It was necessary that Congress should have the power to declare whether this definition was to be adopted, and also to determine whether any other crimes should constitute piracy. In the same way, the term "felony" has a particular meaning in the common law, and it had in the laws of the different States of the Union a somewhat various meaning. It was necessary that Congress should have the power to adopt any definition of this term, and also to determine what other crimes should be deemed felonies. So also there were various offences known to the law of nations, and generally regarded as such by civilized States. But before Congress could have power to punish for any of those offences, it would be necessary that they, as the legislative organ of the nation, should determine and make known what acts were to be regarded as offences against the law of nations; and that the power to do this should include both the power to adopt from the 1 That is to say, it is the same crime, committed on the high seas, that is denominated robbery when committed on the land. code of public law offences already defined by that code, and to extend the definition to other acts. The term "declare" was therefore adopted expressly with a view to the ascertaining and creating of offences, which were to be treated as piracies and felonies committed on the high seas, and as offences against the law of nations.1 The same necessity for an authority to prescribe a previous definition of the crime of counterfeiting the securities and current coin of the United States would seem to have been felt; and it was probably intended to be given by the terms "to provide for the punishment of" such counterfeiting.2 The power to "declare" war had been reported by the committee as a power to "make" war. There was a very general acquiescence in the propriety of vesting the war power in the legislature rather than the executive; but the former expression was substituted in place of the latter, in order, as it would seem, to signify that the legislature alone were to determine formally the state of war, but that the executive might be able to repel sudden attacks. The clause which enables Congress to grant "letters of marque and reprisal" was added to the war power, at a subsequent period, on the recommendation of a committee to whom were re 1 Madison, Elliot, V. 436, 437. 2 In the clause as it passed the Convention, the offence of counterfeiting was placed with the other crimes which Congress was to "define" and "punish”; but, on the revision of the Constitution, coun- ferred sundry propositions introduced by Charles Pinckney, of which this was one.1 "2 In addition to the war power, which would seem to involve of itself the authority to raise all the necessary forces required by the exigencies of a war, the committee of detail had given the separate power to raise armies," which the Convention enlarged by adding the term to "support.' This embraced standing armies in time of peace, and, as the clause thus amended would obviously allow, such armies might be enlarged to any extent and continued for any time. The nature of the government, and the liberties and the very prejudices of the people, required that some check should be introduced, to prevent an abuse of this power. A limitation of the number of troops that Congress might keep up in time of peace was proposed, but it was rejected by all the States as inexpedient and impracticable. Another check, capable of being adapted to the proper exercise of the power itself, was to be found in an idea suggested by Mr. Mason, of preventing a perpetual revenue. The application of this principle to the power of raising and supporting armies would furnish a salutary limitation, by requiring the appropriations for this purpose to pass frequently under the review of the representatives of the people, without embarrassing the exercise of the power itself. Accordingly, the clause now in the Constitution, which restricts the appropriation of 1 Elliot, V. 440, 510, 511. 2 Ibid. 442. 3 Ibid. 443. 4 Ibid. 440. money to the support of the army to a term not longer than two years, was added to the power of raising and supporting armies.1 Authority "to provide and maintain a navy" was unanimously agreed as the most convenient definition of the power, and to this was added, from the Articles of Confederation, the power "to make rules for the government and regulation of the land and naval forces.' "2 The next subject which required consideration was the power of the general government over the militia of the States. There were few subjects dealt with by the framers of the Constitution exceeding this in magnitude, in importance, and delicacy. It involved not only the relations of the general government to the States and the people of the States, but the question whether and how far the whole effective force of the nation could be employed for national purposes and directed to the accomplishment of ob-. jects of national concern. The mode in which this question should be settled would determine, in a great degree, and for all time, whether the national power was to depend, for the discharge of its various duties in peace and in war, upon standing armies, or whether it could also employ and rely upon that great reservation of force that exists in all countries accustomed to enroll and train their private citizens to the use of arms. The American Revolution had displayed nothing 1 Elliot, V. 510, 511 tion, Art. I. § 8, clause 12. Constitu 2 Elliot, V. 443. more conspicuously than the fact, that, while the militia of the States were in general neither deficient in personal courage, nor incapable of being made soldiers, they were inefficient and unreliable as troops. One of the principal reasons for this was, that, when called into the field in the service of the federal power, the different corps of the several States looked up to their own local government as their sovereign; and being amenable to no law but that of their own State, they were frequently indisposed to recognize any other authority. But a far more powerful cause of their inefficiency lay in the fact that they were not disciplined or organized or armed upon any uniform system. A regiment of militia drawn from New Hampshire was a very different body from one drawn from New York, or Pennsylvania, or New Jersey, or South Carolina. The consequence was, that when these different forces were brought to act together, there were often found in the same campaign, and sometimes in the same engagement, portions of them in a very respectable state of discipline and equipment, and others in no state of discipline or equipment at all. The necessity, therefore, for a uniform system of disciplining and arming the militia was a thing well ascertained and understood, at the time of the formation of the Constitution. But the control of this whole subject was a part of the sovereignty of each State, not likely to be surrendered without great jealousy and distrust; and one of the most delicate of the tasks imposed upon the Convention was that |