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inventor, in the sense of the Constitution, so as to preclude that question from judicial inquiry. But, at ali events, such a construction ought never to be put upon the terms of any general act in favor of a particular inveniur, unless it be inevitable.
§ 182. The next power of Congress is, “ to constitute tribunals inferior to the Supreme Court.” But this will hereafter properly come under review, in considering the structure and powers of the Judicial department.
Punishment of Piracies and Felonies.—Declaration of
9 183. The next power of Congress is, “to define, . and punish piracies and felonies, committed on the high seas, and offences against the law of nations.” Piracy is commonly defined to be robbery, or forcible depredation upon the high seas with intent to steal. But « felony ” is a term, not so exactly understood or defined. It is usually applied to designate capital offences, that is, of fences punishable with death ; but its true original mean ing seems to be, to designate such offences as are by the common law punished by forfeiture of lands and goods. “Offences against the law of nations” are still less clearly defined ; and therefore, as to these, as well as to felonies, the power to define, as well as to punish, is very properly given. As the United States are responsible to foreign governments for the conduct of our own citizens on the high seas, and as the power to punish offences committed there is also indispensable to the due protection and support of our navigation and commerce, and the States, separately, are incapable of affording adequate redress in such cases, the power is appropriately vested in the General Government.
$ 184. What the true meaning of the phrase " high seas,” is, within the intent of this clause, does not seem to be matter of any serious doubt. In order to understand it, resort must be had to the common law, in which, the definition of “high seas” is, that the high seas embrace not only all the waters of the ocean, which are out of sight of land, but also all waters on the seacoast below lowwater mark, whether those waters be within the territorial sovereignty of a foreign nat on or of a domestic State. It has accordingly been held, by our ablest law writers, that the main or high seas properly begin at low-water mark
§ 185. The next power of Congress is, “to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."
That the power to declare war should belong exclusively to the National Government, would hardly seem matter of controversy If it belonged to the States severally, it would be in the power of any one of them, at any time, to involve the whole Union in hostilities with a foreign country, not only against their interests, but against their judgement. Their very existence might thus be jeoparded without their consent, and their liberties sacrificed to private resentment, or popular prejudice. The power cannot, therefore, be safely deposited, except in the General Government; and, if in the General Government, it ought to belong to Congress, where all the States and all the people of the States are represented ; and where a majority of both Houses must concur, to authorize the declaration. War, indeed, is, in its mildest form, so dreadful a calamity ; it destroys so many lives, wastes so much property, and introduces so much moral desolation ; that nothing but the strongest state of necessity can justify, or excuse it.
In a republican government, it should never be resorted to, except as a last expedient to vindicate its rights ; for military power and military ambition have but too often fatally tr· umphed over the liberties of the people.
$ 186. The power to declare war, if vested in the Gen eral Government, might have been vested in the President, or in the Senate, or in both, or in the House of Representatives alone. In monarchies, the power is ordinarily vested in the Executive. But certainly, in a republic,
che chief magistrate ought not to be clothed with a power 80 summary, and, at the same time, so full of dangers to the public interest and the public safety. It would be to commit the liberties, as well as the rights of the people, to the ambition, or resentment, or caprice, or rashness of a single mind. If the power were confided to the Senate, either alone, or in connection with the Executive, it might be more saja in its exercise, and the less liable to abuse. Still, however, iš such a case, the people, who were to bear the burdens, and meet the sacrifices and sufferings of such a calamity, would have no direct voice in the matter. Yet the taxes and the loans, which would be required to carry on the war, must be voted by their Representatives, or there would be an utter impossibility of urging it with success.
If the Senate should be in favor of war, and the House of Representatives against it, an immediate conflict would arise between them, and in the distraction of the public councils, nothing but disaster or ruin would follow the nation. On the contrary, if the House of Representatives were called upon by the Constitution to join in the declaration of war, harmony in the public councils might fairly be presumed in carrying on all its operations ; for it would be a war sustained by the authority of the voice of the people, as well as of the States. This reasoning was decisive in confiding the power to Con gress.
§ 187. “Letters of marque and reprisal” are commis sions, granted to private persons and ships, to make cap tures ; and are usually granted in times of general war. The power to declare war would, of itself, carry the incidental power to grant letters of marque and reprisal, and to make rules concerning captures, in a general war But such letters are also sometimes granted by nations, having no intention to enter into a general war, in order to redress a grievance to a private citizen, which the offending nation refuses to redress. In such a case, a commission is sometimes granted to the injured individual, to make a reprisal upon the property of the subjects of that nation to the extent of his injury. It thus creates an imperfect state of hostilities, not necessarily ncluding a general war
fare. Still, however, it is a dangerous experiment; an the more usual, and wise course is, tu resort to negotiations in such cases, and to wait until a favorable moment occurs to press the claim.
9 188. "If captures are to be made, as they necessarily must be, to givo efficiency to a declaration of war, it follows, that the General Government ought to possess the power to inake rules and regulations concerning them, thereby to restrain personal violence, intemperate cupidity, and de grading cruelty.
Power as to Army and Navy.
9 189. 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.” The power to raise armies would seem to be an indispensable incident to the power to declare war, if the latter is not to be a mere idle sound, or instrument of mischief. Under the Confederation, however, the two powers were separated ; Congress were authorized to declare war; but they could not raise troops. They could only make requisitions upon the States to raise them.
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. 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 Auctuations in the troops, ruinous to their discipline, and subjecting the pubnic 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. The burden 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 headway at all against an enemy, possessing a fine establishinent, well appointed, well armed, well clothed, and well paid The appointment, too, by the States, of all regimenta) officers, had a tendency to destroy all harmony and subordination, so necessary to the success of military life. The consequence was (as is well known) general ineffi ciency, want of economy, mischievous delays, and great inequality of burdens. This is, doubtless, the reason, why the power is expressly given to Congress. It insures promptitude and unity of action, and, at the same time, promotes economy and harmony of operations. Nor is it in war only, that the power to raise armies may be usefully applied. It is important to suppress domestic rebellions and insurrections, and to prevent foreign aggressions and invasions. A nation, which is prepared for war in times of peace, will, thereby, often escape the necessity of engaging in war. Its rights will be respected, and its wrongs redressed. Imbecility and want of preparation invite aggression, and protract controversy.