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417. It was formerly, usual to precede hostilities · by a public declaration, communicated formally to
the enemy; but in modern times this practice has been discontinued, and the Nation proclaiming war now confines itself to á 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 consent 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 presúmed, the President of himself may make, and of which the duration may be indefinile; 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 invest. ed 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 "uiles 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 can 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 declaration does not, by its single operation, produce any of those "results which are usually effected by further measures of the Government, consequent upon the declaration 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 Government as to support Judicial proc e lings for its seizure and condeinnation ; but vests merely a right, of which the assertion depends on the future action of the Legislature. .
433. The Power of raising armies and equipping
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 invert. ed a primary principle of the New Constitution, and transferred in practice, the care of the common defence, from the Federal head, to the individual members 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.
- 438. The abuse of this prerogative had led to the adoption of that article in the Bill of Rights, framed by the Convention-Parliament of England in 1688, which declares, that “ raising or keeping a standing army in time of peace, unless with the consent of Par. liament, is against Law.”...; ..
439. The principles which had inculcated in the Colonists, jealousy of the power of an hereditary monarch, seem to have extended it, after indepen. dence was declared, to the Representatives of the · People in the State Legislatures. ...
440: In the Constitutions of two of the States, prohibitions of Military establishments in time of peace were introduced ; and in those of some others of the States in which the absolute prohibition was not adopted, a clause similar to that of the English Bill of Rights, was inserted.
441. This clause, however, was not, from its terms, applicable to the State Governments; as the power of raising armies could by no construction, be held to reside any where else than in the Legislatures themselves; and its introduction was in effect to de clare, that a measure should not be adopted without the consent of that body, which alone had power to originate and sanction it.
442. In the Constitutions of the other States, there is no provision on the subject; and even in those which seemed to have intended a total interdiction of Military establishments in time of peace, the expressions are monitory, rather than prohibitory; whilst their ambiguity appears to have resulted from a conflict between the desire of excluding such establishments, and the conviction that their absolute exclusion would be unwise and unsafe. ..