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OF THE POWERS VESTED IN THE GENERAL GOVERNMENT, RELATIVE TO SECURITY FROM FOREIGN DANGER.
413. As security from foreign danger is one of the primary objects of civil society, so it was an avowed and essential purpose of the union of the States; and the powers requisite to attaining it were effectually confided to the National Government, and consist
1. Of the Powers of declaring War, and grant
ing letter? of marque and reprisal.
2. Of making rules concerning captures by land
3. Of providing armies and fleets; and of re
gulating and calling forth the militia; and,
4. Of the Powers of levying taxes, and of bor
414. The right of self-defence is derived from the Law of Nature; and it is the indispensable duty of civil society to protect its members in the enjoyment of their rights, both of person and property.
415. It is in virtue of this fundamental principle of every social compact, that an injury done or threatened to the perfect rights of a Nation, or of any of its members, and susceptible of no other redress, is deemed by all approved writers upon public Law, to afford just cause of war.
416. But as the evils of war are certain, whilst its results are doubtful, both wisdom and humanity require that every possible precaution should be used, and every necessary preparation made, before a Nation engages in it.
417. It was formerly usual to precede hostilities by a public declaration, communicated formally to the enemy; hut in modern times this practice has been discontinued, and the Nation proclaiming war now confines itself to a declaration within its own territory, and to its own People.
418. The Power of declaring war is vested by the Constitution of the United States in Congress; without whose eonsent no State can engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
419. Although Congress alone, by an Act passed like other Laws, according to the forms of legislation, can of itself subject the Nation to war; yet a smaller portion of the Government is competent to restore peace; as hostilities may be terminated by a truce, which, it is presumed, the President of himself may make, and of which the duration may be indefinite; whilst Treaties of Peace are made by the President and Senate, without the intervention of the House of Representatives.
420. As the delay of making war may sometimes be detrimental to individuals who have suffered from the depredations of foreign Nations, Congress are invested with the Power of issuing Letters of Marque and Reprisal; the latter signifying a taking in return; the former, passing the frontier, in order to such taking.
421. This Power is plainly derived in all cases from that of making war; and induces, in its exercise, an incomplete state of hostilities, which generally ends in a formal denunciation of war.
422. By the Law of Nations, Letters of Marque and Reprisal may be granted whenever the subjects of one State are oppressed and injured by those of another, and justice is denied by the State to which the oppressor belongs.
423. They are in the nature of a Commission granted by the Government to particular citizens, authorizing them to seize the bodies or goods of citizens of the offending Nation, wherever they may be found, until satisfaction be made.
424. The necessity of calling in the Sovereign Power to determine when this proceeding may be resorted to, is obvious; as otherwise every private individual might act as a judge in his own cause, and at his pleasure involve the Nation he belongs to in war to avenge his private injury.
425. The Power of making " rules concerning Captures on Land and Water" which is superadded to the Power of declaring war, is not confined to captures made beyond the territorial limits of the United States; but comprehends rules respecting the property of an enemy found within those limits. *
426. It is an express grant to Congress of the Power of confiscating such property, as an independent substantive Power, not included in the Power to declare war.
427. When a war breaks out, the question as to the disposition of enemy's property in the country is a question of policy for the consideration of the National Legislature, and not proper for the consideration of the Judiciary, which cati only pursue the Law as it is written.
428. A declaration of war by the sovereign power of one State against another, implies that the whole Nation declares war; and that all the subjects of the one are enemies to all the subjects of the other.
429. Although a declaration of war has this effect, with regard to individuals, and thus gives to them those mutual and respective rights under the Law of Nations, which a state of war confers; yet the mere
ration does not, by its single operation, produce >f those results which are usually effected by her measures of the Government, consequent upration of war.
430. By a strict interpretation of the ancient public Law, War gives to a Nation full right to take the persons, and confiscate the property, of its enemy wherever it may be found; and the mitigation of this rule, which the policy of modern times has introduced into practice, although it may affect its exercise, cannot impair the right itself; and whenever the Legislature chooses to bring it into operation, the Judicial department must give it effect.
431. Until the Legislative will, however, is distinctly declared, no power of condemnation can exist in the Courts; and proceedings to condemn enemy's property found in the country at the declaration of war, can be sustained only on the principle of their having been commenced in execution of an existing Law.
432. An act of Congress simply declaring war, does not, by its own operation, so vest such property in the Governmen for its seizure and a right, of which the asser action of the Legislature.
433. The Power of raising armies
fleets, seems to be involved in the power of declaring war; and to have left it to be exercised by the States under the direction of Congress, would have inverted a primary principle of the New Constitution, and transferred in practice, the care of the common from the Federal head, to the individual of the Union.
434. From the nature of the Federal Government, there can be little danger from a standing army in time of peace; whilst the impolicy of restraining the discretion of Congress is manifest, from considering that the efficiency of the power depends on its being indefinite; and upon its extending to the maintenance of an army and navy in peace as well as in war.
435. Unless the National Government could set bounds to the ambition, injustice, or exertions of other nations, no restraints should be imposed on the discretionary powers of Congress in relation to the subject; nor any limits prescribed to its efforts for the defence and preservation of the Nation.
436. A readiness for war in time of peace is not only necessary for self-defence, but affords the most certain means of preventing aggression, by exhibiting such resources and preparations for repelling it, as may discourage or deter an enemy from attempts which would probably prove unavailing.
437. A jealousy of the power of raising and maintaining armies and fleets in time of peace, arose from the prevailing sentiment at the time of the Revolution, in regard to the undefi ed power of making war, and supporting, by its own authority, regular troops in time of peace, which was the acknowledged prerogative of the British crown.