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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 nation 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 triumphed over the liberties of the people.

§ 186. The power to declare war, if vested in the General 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

the chief magistrate ought not to be clothed with a power so 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 safe in its exercise, and the less liable to abuse. Still, however, in 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 mat

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 Congress.

§ 187. "Letters of marque and reprisal" are commissions, granted to private persons and ships, to make captures; 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 including a general war

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 nation 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 triumphed over the liberties of the people.

§ 186. The power to declare war, if vested in the General Government, might have been vested in the President, or in the Senate, or in both, or in the House of Repre sentatives alone. In monarchies, the power is ordinarily

the chief magistrate ought not to be clothed with a power so 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 safe in its exercise, and the less liable to abuse. Still, however, in 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 Congress.

§ 187. "Letters of marque and reprisal" are commissions, granted to private persons and ships, to make captures; 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 including a general war

fare. Still, however, it is a dangerous experiment; and the more usual, and wise course is, to resort to negotiations in such cases, and to wait until a favorable moment occurs to press the claim.

§ 188. If captures are to be made, as they necessarily must be, to give efficiency to a declaration of war, it follows, that the General Government ought to possess the power to make rules and regulations concerning them, thereby to restrain personal violence, intemperate cupidity, and degrading cruelty.

CHAPTER XX.

Power as to Army and Navy.

§ 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

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