chapter 42: power to declare war and make captures — army — navy
§ 1164. A similar exclusive power was given to congress by the confederation. 1 That such a power ought to exist in the national government, no one will deny, who believes, that it ought to have any powers whatsoever, either for offence or defence, for the common good, or for the common protection. It is, therefore, wholly superfluous to reason out the propriety of granting the power. 2 It is self-evident, unless the national government is to be a mere mockery and shadow. The power could not be left without extreme mischief, if not absolute ruin, to the separate authority of the several states; for then it would be at the option of any one to involve the whole in the calamities and burthens of warfare. 3 In the general government it is safe, because there it can be declared only by the majority of the states.
§ 1165. The only practical question upon this subject would seem to be, to what department of the national government it would be most wise and safe to confide this high prerogative, emphatically called the last resort of sovereigns, ultima ratio regum . In Great Britain it is the exclusive prerogative of the crown; 4 and in other countries, it is usually, if not universally confided to the executive department. It might by the constitution have been confided to the executive, or to the senate, or to both conjointly.
§ 1166. In the plan offered by an eminent statesman in the convention, it was proposed, that the senate should have the sole power of declaring war. 5 The reasons, which may be urged in favour of such an arrangement, are, that the senate would be composed of representatives of the states, of great weight, sagacity, and experience, and that being a small and select body, promptitude of action, as well as wisdom, and firmness, would, as they ought, accompany the possession of the power. Large bodies necessarily move slowly; and where the co-operation of different bodies is required, the retardation of any measure must be proportionally increased. In the ordinary course of legislation this may be no inconvenience. But in the exercise of such a prerogative, as declaring war, despatch, secrecy, and vigour are often indispensable, and always useful towards success. On the other hand it may be urged in reply, that the power of declaring war is not only the highest Sovereign prerogative; but that it is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation. War, in its best estate, never fails to impose upon the people the most burthensome taxes, and personal sufferings. It is always injurious, and sometimes subversive of the great commercial, manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not unfrequently the existence, of a nation. It is sometimes fatal to public liberty itself, by introducing a spirit of military glory, which is ready to follow, wherever a successful commander will lead; and in a republic, whose institutions are essentially founded on the basis of peace, there is infinite danger, that war will find it both imbecile in defence, and eager for contest. Indeed, the history of republics has but too fatally proved, that they are too ambitious of military fame and conquest, and too easily devoted to the views of demagogues, who flatter their pride, and betray their interests. It should therefore be difficult in a republic to declare war; but not to make peace. The representatives of the people are to lay the taxes to support a war, and therefore have a right to be consulted, as to its propriety and necessity. The executive is to carry it on, and therefore should be consulted, as to its time, and the ways and means of making it effective. The co-operation of all the branches of the legislative power ought, upon principle, to be required in this the highest act of legislation, as it is in all others. Indeed, there might be a propriety even in enforcing still greater restrictions, as by requiring a concurrence of two thirds of both houses. 6
§ 1167. This reasoning appears to have had great weight with the convention, and to have decided its choice. Its judgment has hitherto obtained the unqualified approbation of the country. 8
§ 1168. In the convention, in the first draft of the constitution, the power was given merely "to make war." It was subsequently, and not without some struggle, altered to its present form. 9 It was proposed to add the power "to make peace;" but this was unanimously rejected; 10 upon the plain ground, that it more properly belonged to the treaty-making power. The experience of congress, under the confederation, of the difficulties, attendant upon vesting the treaty-making power in a large legislative body, was too deeply felt to justify the hazard of another experiment. 11
§ 1169. The power, to declare war may be exercised by congress, not only by authorizing general hostilities, in which case the general laws of war apply to our situation; or by partial hostilities, in which case the laws of war, so far as they actually apply to our situation, are to be observed. 12 The former course was resorted to in our war with Great Britain in 1812, in which congress enacted, "that war be, and hereby is declared to exist, between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories." 13 The latter course was pursued in the qualified war of 1798 with France, which was-regulated by divers acts of congress, and of course was confined to the limits prescribed by those acts. 14
§ 1170. The power to declare war would of itself carry the incidental power to grant letters of marque and reprisal, and make rules concerning captures. It is most probable, that an extreme solicitude to follow out the powers enumerated in the confederation occasioned the introduction of these clauses into the Constitution. In the former instrument, where all powers, not expressly delegated, were prohibited, this enumeration was peculiarly appropriate. But in the latter, where incidental powers were expressly contemplated, and provided for, the same necessity did not exist. As has been already remarked in another place, and will abundantly appear from the remaining auxiliary clauses to the power to declare war, the constitution abounds with pleonasms and repetitions, sometimes introduced from caution, sometimes from inattention, and sometimes from the imperfections of language. 15
§ 1171. But the express power "to grant letters of marque and reprisal" may not have been thought wholly unnecessary, because it is often a measure of peace, to prevent the necessity of a resort to war. Thus, individuals of a nation sometimes suffer from the depredations of foreign potentates; and yet it may not be deemed either expedient or necessary to redress such grievances by a general declaration of war. Under such circumstances the law of nations authorizes the sovereign of the injured individual to grant him this mode of redress, whenever justice is denied to him by the state, to which the party, who has done the injury, belongs. In this case the letters of marque and reprisal (words used as synonymous, the latter (reprisal) signifying, a taking in return, the former (letters of marque) the passing the frontiers in order to such taking,) contain an authority to seize the bodies or goods of the subjects of the offending state, wherever they may be found, until satisfaction is made for the injury. 16 This power of reprisal seems indeed to be a dictate almost of nature itself, and is nearly related to, and plainly derived from that of making war. It is only an incomplete state of hostilities, and often ultimately leads to a formal denunciation of war, if the injury is unredressed, or extensive in its operations. 17
§ 1172. The power to declare war is exclusive in congress; and (as will be hereafter seen,) the states are prohibited from engaging in it, unless in cases of actual invasion or imminent danger thereof. It includes the exercise of all the ordinary rights of belligerents; and congress may therefore pass suitable laws to enforce them. They may authorize the seizure and condemnation of the property of the enemy within, or without the territory of the United States; and the confiscation of debts due to the enemy. But, until laws have been passed upon these subjects, no private citizens can enforce any such rights; and the judiciary is incapable of giving them any legitimate operation. 18
§ 1174. The power to raise armies is an indispensable incident to the power to declare war; and the latter would be literally brutum fulmen without the former, a means of mischief without a power of defence. 19 Under the confederation congress possessed no power whatsoever to raise armies; but only "to agree upon the number of land forces, and to make requisitions from each state for its quota, in proportion to the number of white inhabitants in such state;" which requisitions were to be binding; and thereupon the legislature of each state were to appoint the regimental officers, raise the men, and clothe, arm, and equip them in a soldier-like manner, at the expense of the United States. 20 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. 21 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 fluctuations in the troops, ruinous to their discipline, and subjecting the public 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. 22 The burthen 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 head-way at all against an enemy, possessing a fine establishment, well appointed, well armed, well clothed, and well paid. 23 The appointment, too, by the states, of all regimental officers, had a tendency to destroy all harmony and subordination, so necessary to the success of military life.
§ 1175. There is great wisdom and propriety in relieving the government from the ponderous and unwieldy machinery of the requisitions and appointments under the confederation. The present system of the Union is general and direct, and capable of a uniform organization and action. It is essential to the common defence, that the national government should possess the power to raise armies; build and equip fleets; prescribe rules for the government of both; direct their operations; and provide for their support. 24
§ 1176. The clause, as originally reported, was "to raise armies;" and subsequently it was, upon the report of a committee, amended, so as to stand in its present form; and as amended it seems to have encountered no opposition in the convention. 25 It was, however, afterwards assailed in the state conventions, and before the people, with incredible zeal and pertinacity, as dangerous to liberty, and subversive of the state governments. Objections were made against the general and indefinite power to raise armies, not limiting the number of troops; and to the maintenance of them in peace, as well as in war.
§ 1177. It was said, that congress, having an unlimited power to raise and support armies, might, if in their opinion the general welfare required it, keep large armies constantly on foot, and thus exhaust the resources of the United States. There is no control on congress, as to numbers, stations, or government of them. They may billet them on the people at pleasure. Such an unlimited authority is most dangerous, and in its principles despotic; for being unbounded, it must lead to despotism. We shall, therefore, live under a government of military force. 26 In respect to times of peace, it was suggested, that there is no necessity for having a standing army, which had always been held, under such circumstances, to be fatal to the public rights and political freedom. 27
§ 1178. To these suggestions it was replied, with equal force and truth, that to be of any value, the power must be unlimited. It is impossible to foresee, or define the extent and variety of national exigencies, and the correspondent extent and variety of the national means necessary to satisfy them. The power must be co-extensive with all possible combinations of circumstances, and under the direction of the councils entrusted with the common defence. To deny this would be to deny the means, and yet require the end. These must, therefore, be unlimited in every matter essential to its efficacy, that is, in the formation, direction, and support of the national forces. 28 This was not doubted under the confederation; though the mode adopted to carry it into effect was utterly inadequate and illusory. 29 There could be no real danger from the exercise of the power. It was not here, as in England, where the executive possessed the power to raise armies at pleasure; which power, so far as respected standing armies in time of peace, it became necessary to provide by the bill of rights, in 1688, should not be exercised without the consent of parliament. 30 Here the power is exclusively confined to the legislative body, to the representatives of the states, and of the people of the states. And to suppose it will not be safe in their hands, is to suppose, that no powers of government, adapted to national exigencies, can ever be safe in any political body. 31 Besides, the power is limited by the necessity (as will be seen) of biennial appropriations. 32 The objection, too, is the more strange, because there are but two constitutions of the thirteen states, which attempt in any manner to limit the power; and these are rather cautions for times of peace, than prohibitions. 33 The confederation itself contains no prohibition or limitation of the power. 34 Indeed, in regard to times of war, it seems utterly preposterous to impose any limitations upon the power; since it is obvious, that emergencies may arise, which would require the most various, and independent exercises of it. The country would otherwise be in danger of losing both its liberty and its sovereignty, from its dread of investing the public councils with the power of defending it. It would be more willing to submit to foreign conquest, than to domestic rule.
§ 1179. But in times of peace the power may be at least equally important, though not so often required to be put in full exercise. The United States are surrounded by the colonies and dependencies of potent foreign governments, whose maritime power may furnish them with the means of annoyance, and mischief, and invasion. To guard ourselves against evils of this sort, it is indispensable for us to have proper forts and garrisons, stationed at the weak points, to overawe or check incursions. Besides; it will be equally important to protect our frontiers against the Indians, and keep them in a state of due submission and control. 35 The garrisons can be furnished only by occasional detachments of militia, or by regular troops in the pay of the government. The first would be impracticable, or extremely inconvenient, if not positively pernicious. The militia would not, in times of profound peace, submit to be dragged from their occupations and families to perform such a disagreeable duty. And if they would, the increased expenses of a frequent rotation in the service; the loss of time and labour; and the breaking up of the ordinary employments of life; would make it an extremely ineligible scheme of military power. The true and proper recourse should, therefore, be to a permanent, but small standing army for such purposes. 36 And it would only be, when our neighbours should greatly increase their military force, that prudence and a due regard to our own safety would require any augmentation of our own. 37 It would be wholly unjustifiable to throw upon the states the defence of their own frontiers, either against the Indians, or against foreign foes. The burthen would often be disproportionate to their means, and the benefit would often be largely shared by the neighbouring states. The common defence should be provided for out of the common treasury. The existence of a federal government, and at the same time of military establishments under state authority, are not less at variance with each other, than a due supply of the federal treasury, and the system of quotas and requisitions. 38
§ 1180. It is important also to consider, that the surest means of avoiding war is to be prepared for it in peace. If a prohibition should be imposed upon the United States against raising armies in time of peace, it would present the extraordinary spectacle to the world of a nation incapacitated by a constitution of its own choice from preparing for defence before an actual invasion. As formal denunciations of war are in modern times often neglected, and are never necessary, the presence of an enemy within our territories would be required, before the government would be warranted to begin levies of men for the protection of the state. The blow must be received, before any attempts could be made to ward it off, or to return it. Such a course of conduct would at all times invite aggression and insult; and enable a formidable rival or secret enemy to seize upon the country, as a defenseless prey; or to drain its resources by a levy of contributions, at once irresistible and ruinous. 39 It would be in vain to look to the militia for an adequate defence under such circumstances. This reliance came very near losing us our independence, and was the occasion of the useless expenditure of many millions. The history of other countries, and our past experience, admonish us, that a regular force, well disciplined and well supplied, is the cheapest, and the only effectual means of resisting the inroads of a well disciplined foreign army. 40 In short, under such circumstances the constitution must be either violated, (as it in fact was by the states under the confederation, 41 ) or our liberties must be placed in extreme jeopardy. Too much precaution often leads to as many difficulties, as too much confidence. How could a readiness for war in time of peace be safely prohibited, unless we could in like manner prohibit the preparations and establishments of every hostile nation? The means of security can be only regulated by the means and the danger of attack. They will, in fact, ever be determined by these rules, and no other. It will be in vain to oppose constitutional barriers to the impulse of self-preservation. 42
§ 1181. But the dangers from abroad are not alone those, which are to be guarded against in the structure of the national government. Cases may occur, and indeed are contemplated by the constitution itself to occur, in which military force may be indispensable to enforce the laws, or to suppress domestic insurrections. Where the resistance is confined to a few insurgents, the suppression may be ordinarily, and safely confided to the militia. But where it is extensive, and especially if it should pervade one, or more states, it may become important and even necessary to employ regular troops, as at once the most effective, and the most economical force. 43 Without the power to employ such a force in time of peace for domestic purposes, it is plain, that the government might be in danger of being overthrown by the combinations of a single faction. 44
§ 1182. The danger of an undue exercise of the power is purely imaginary. It can never be exerted, but by the representatives of the people of the states; and it must be safe there, or there can be no safety at all in any republican form of government. 45 Our notions, indeed, of the dangers of standing armies in time of peace, are derived in a great measure from the principles and examples of our English ancestors. In England, the king possessed the power of raising armies in the time of peace according to his own good pleasure. And this prerogative was justly esteemed dangerous to the public liberties. Upon the revolution of 1688, parliament wisely insisted upon a bill of rights, which should furnish an adequate security for the future. But how was this done? Not by prohibiting standing armies altogether in time of peace; but (as has been already seen) by prohibiting them without the consent of parliament . 46 This is the very proposition contained in the constitution; for congress can alone raise armies; and may put them down, whenever they choose.
§ 1183. It may he admitted, that standing armies may prove dangerous to the state. But it is equally true, that the want of them may also prove dangerous to the state. What then is to be done? The true course is to check the undue exercise of the power, not to withhold it. 47 This the constitution has attempted to do by providing, that "no appropriation of money to that use shall be for a longer term than two years." Thus, unless the necessary supplies are voted by the representatives of the people every two years, the whole establishment must fall. Congress may indeed, by an act for this purpose, disband a standing army at any time; or vote the supplies only for one year, or for a shorter period. But the constitution is imperative, that no appropriation shall prospectively reach beyond the biennial period. So that there would seem to be every human security against the possible abuse of the power. 48
§ 1184. But, here again it was objected, that the executive might keep up a standing army in time of peace, notwithstanding no supplies should be voted. But how can this possibly be done? The army cannot go without supplies; it may be disbanded at the pleasure of the legislature; and it would be absolutely impossible for any president, against the will of the nation, to keep up a standing army in terrorem populi . 49
§ 1185. It was also asked, why an appropriation should not be annually made, instead of biennially, as is the case in the British parliament. 50 The answer is, that congress may in their pleasure limit the appropriation to a single year; but exigencies may arise, in which, with a view to the advantages of the public service and the pressure of war, a biennial appropriation might be far more expedient, if not absolutely indispensable. Cases may be supposed, in which it might be impracticable for congress, in consequence of public calamities, to meet annually for the despatch of business. But the supposed example of the British parliament proves nothing. That body is not restrained by any constitutional provision from voting supplies for a standing army for an unlimited period. It is the mere practice of parliament, in the exercise of its own discretion, to make an annual vote of supplies. Surely, if there is no danger in confiding an unlimited power of this nature to a body chosen for seven years, there can be none in confiding a limited power to an American congress, chosen for two years. 51
§ 1186. In some of the state conventions an amendment was proposed, requiring, that no standing army, or regular forces be kept up in time of peace, except for the necessary protection and defence of forts, arsenals, and dockyards, without the consent of two thirds of both houses of congress. 52 But it was silently suffered to die away with the jealousies of the day. The practical course of the government on this head has allayed all fears of the people, and fully justified the opinions of the friends of the constitution. It is remarkable, that scarcely any power of the national government was at the time more strongly assailed by appeals to popular prejudices, or vindicated with more full and masculine discussion. The Federalist gave it a most elaborate discussion, as one of the critical points of the constitution. 53 In the present times the subject attracts no notice, and would scarcely furnish a topic, even for popular declamation. Ever since the constitution was put into operation, congress have restrained their appropriations to the current year; and thus practically shown the visionary nature of these objections.
§ 1187. Congress in 1798, in expectation of a war with France, authorized the president to accept the services of any companies of volunteers, who should associate themselves for the service, and should be armed, clothed, and equipped at their own expense, and to commission their officers. 54 This exercise of power was complained of at the time, as a virtual infringement of the constitutional authority of the states in regard to the militia; and, as such, it met with the disapprobation of a learned commentator. 55 His opinion does not, however, seem since to have received the deliberate assent of the nation. During the late war with Great Britain, laws were repeatedly passed, authorizing the acceptance of volunteer corps of the militia under their own officers; and eventually, the president was authorized, with the consent of the senate, to commission officers for such volunteer corps. These laws exhibit the decided change of the public opinion on this subject; and they deserve more attention, since the measures were promoted and approved under the auspices of the very party, which had inculcated an opposite opinion. 56 It is proper to remark, that the Federalist maintained, that the disciplining and effective organization or the whole militia would be impracticable; that the attention or the government ought particularly to be directed to the formation or a select corps of moderate size, upon such principles, as would really fit them for service in case or need; and that such select corps would constitute the best substitute for a large standing army, and the most formidable check upon any undue military powers; since it would be composed or citizens well disciplined, and well instructed in their rights and duties. 57
§ 1189. Under the confederation congress possessed the power "to build and equip a navy." 58 The same language was adopted in the original draft of the constitution; and it was amended by substituting the present words, apparently without objection, as more broad and appropriate. 59 In the convention, the propriety or granting the power seems not to have been questioned. But it was assailed in the state conventions as dangerous. It was said, that commerce and navigation are the principal sources or the wealth or the maritime powers or Europe; and if we engaged in commerce, we should soon become their rivals. A navy would soon be thought indispensable to protect it. But the attempt on our part to provide a navy would provoke these powers, who would not suffer us to become a naval power. Thus, we should be immediately involved in wars with them. The expenses, too, of maintaining a suitable navy would be enormous; and wholly disproportionate to our resources. If a navy should be provided at all, it ought to be limited to the mere protection of our trade. 60 It was further urged, that the Southern states would share a large portion of the burthens of maintaining a navy, without any corresponding advantages. 61
§ 1190. With the nation at large these objections were not deemed of any validity. The necessity of a navy for the protection of commerce and navigation was not only admitted, but made a strong ground for the grant of the power. One of the great objects of the constitution was the encouragement and protection of navigation and trade. Without a navy, it would be utterly impossible to maintain our right to the fisheries, and our trade and navigation on the lakes, and the Mississippi, as well as our foreign commerce. It was one of the blessings of the Union, that it would be able to provide an adequate support and protection for all these important objects. Besides; a navy would be absolutely indispensable to protect our whole Atlantic frontier, in case of a war with a foreign maritime power. We should otherwise be liable, not only to the invasion of strong regular forces of the enemy; but to the attacks and incursions of every predatory adventurer. Our maritime towns might all be put under contribution; and even the entrance and departure from our own ports be interdicted at the caprice, or the hostility of a foreign power. It would also be our cheapest, as well as our best defence; as it would save us the expense of numerous forts and garrisons upon the seacoast, which, though not effectual for all, would still be required for some purposes. In short, in a maritime warfare without this means of defence, our commerce would be driven from the ocean, our ports would be blockaded, our sea-coast infested with plunderers, and our vital interests put at hazard. 62
§ 1191. Although these considerations were decisive with the people at large in favour of the power, from its palpable necessity and importance to all the great interests of the country, it is within the memory of all of us, that the same objections for a long time prevailed with a leading party in the country, 63 and nurtured a policy, which was utterly at variance with our duties, as well as our honour. It was not until during the late war with Great Britain, when our little navy, by a gallantry and brilliancy of achievement almost without parallel, had literally fought itself into favour, that the nation at large began to awake from its lethargy on this subject, and to insist upon a policy, which should at once make us respected and formidable abroad, and secure protection and honour at home. 64 It has been proudly said by a learned commentator on the laws of England, that the royal navy of England hath ever been its greatest defence and ornament. It is its ancient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful, no danger can be apprehended to liberty. 65 Every American citizen ought to cherish the same sentiment, as applicable to the navy of his own country.
§ 1192. The next power of congress is "to make rules for the government and regulation of the land and naval forces." This is a natural incident to the preceding powers to make war, to raise armies, and to provide and maintain a navy. Its propriety, therefore, scarcely could be, and never has been denied, and need not now be insisted on. The clause was not in the original draft of the constitution; but was added without objection by way of amendment. 66 It was without question borrowed from a corresponding clause in the articles of confederation, 67 where it was with more propriety given, because there was a prohibition of all implied powers. In Great Britain, the king, in his capacity of generalissimo of the whole kingdom, has the sole power of regulating fleets and armies. 68 But parliament has repeatedly interposed; and the regulation of both is now in a considerable measure provided for by acts of parliament. 69 The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive.
§ 1193. It is a natural result of the sovereignty over the navy of the United States, that it should be exclusive. Whatever crimes, therefore, are committed on board of public, ships of war of the United States, whether they are in port or at sea, they are exclusively cognizable and punishable by the government of the United States. The public ships of sovereigns, wherever they may be, are deemed to be extraterritorial, and enjoy the immunities from the local jurisdiction belonging to their sovereign. 70