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CHAPTER XX.

Of War.-Letters of Marque and Reprisal-Captures→→ Army and Navy.

340. CONGRESS has exclusive power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." That self preserv ation, or the right of self-defence, is the first law of nature, is a principle that has received the common assent of mankind. If this principle be a just one, it is the right of every nation to adopt all necessary regulations to resist the aggressions of other nations. Upon this principle, the power has been given to congress to declare war. A just defence, or making use of force against any power that attacks a nation or its privileges, is defensive war. To attain justice by force, if it cannot be otherwise obtained, or to pursue our right by force of arms, is offensive war.

341. But there are cases which, according to the law of nations, constitute justifiable causes of war, when neither good policy, nor a regard for the national honor, requires such a measure. War is at all times attended with great evils; and the dictates, both of wisdom and humanity, forbid a recourse to war, except in extremə cases. The true honor and dignity of a nation are not most effectually sustained by immediate resort to arms upon every occasion of real injury.

342. The ancient practice of formally communicating to the enemy a declaration of war, before hostilities are commenced, is not in use. Such declaration is now made only to the nation that proclaims it. The power to declare war is, in some countries, exercised by the king. In the United States, it is more properly, as well as more safely, entrusted to congress.

310. Where is the power to declare war, &c. vested? Upon what principle is the right of resistance founded? What is defensive war? What is offensive war? 341. In what cases only, if any, should a nation resort to war? 342. How is a declaration of war

343. The power of issuing letters of marque and reprisal, is also given to congress. Marque signifies passing the frontier; reprisal, the taking in return. Letters

of marque and reprisal are given to authorize the subjects. of a nation who have been injured by those of another nation, to seize the bodies or goods of the citizens of such offending nation, wheresoever they may be found, until satisfaction be made. This, however, properly belongs to the government, as a single individual, were he at liberty to act as judge in his own case, might, at his own pleasure, involve the whole nation in war, in seeking to redress his private injury.

344. Connected with the power of declaring war, is the power of making rules concerning captures. According to the law of nations, no individual has any interest in a prize, whether made by a public or private armed vessel, but what he receives under the grant of the government. The general practice is, to distribute the proceeds of the eaptured property, when duly passed upon, and condemned as prize, among the captors, as a reward for bravery, and a stimulus to exertion. But the courts have no power of condemnation, until the legislative will is expressly declared.

345. The district court of the United States has cognizance of complaints in cases of capture made within the United States, or within a marine league of the coast or shore thereof. It has also exclusive cognizance of all seizures on land, and on waters other than those navigable by vessels of ten or more tons burthen, within their respective districts, or on the high seas. War gives a nation the right to take the persons, and confiscate the property of its enemy, wheresoever they may be found.

346. The power "to raise and support armies," and "to provide and maintain a navy," is a power incident to

made? Who declares war in the United States? 343. What are setters of marque and reprisal? For what purpose are they granted? Why is the power to issue them given to the government? 344. What are captures? Whence is the right to prizes obtained? How are they generally distribut d? And when? 315. Before what court are trials for prizes had? What rights does war give a na

the power of declaring war, and of providing for the common defence of the nation; and necessarily includes the power "to make rules for the government of the land and naval forces."

347. It is the general policy of nations, in times of peace, to prepare for war. A constant preparation for self-defence is deemed the most certain means of preventing the attacks of an enemy. One of the means provided by congress for the defence and safety of the nation, is a standing army. A standing army is a large number of armed soldiers, kept constantly in pay, and ready for action, in peace as well as in war. The standing army of the United States consists, at present, of about six thousand men, who are distributed among the several forts and arsenals.

348. But standing armies are by many looked upon with great jealousy, as dangerous to liberty. History furnishes many instances in which nations have suffered great injury from standing armies, and have been even destroyed by them. But the distance of this continent from the powerful nations of Europe, prevents the necessity of keeping up a large and dangerous peace establish

ment.

349. A navy, is generally supposed to be a safer, as well as a more effective means of national defence. A navy means the ships of war that belong to a nation. With the exception of a few years, it has ever been the policy of the government to support an efficient navy. In 1801, congress ordered all the vessels, except thirteen, to be sold: those not directed to be kept in service in time of peace, were to be laid up. In 1805, so much of the act of 1803, as required a certain number of frigates to be kept in service, was repealed; and the president was authorized to keep in actual service in time of peace, as

tion? 346. Where is the power to raise and support armies vested? 347. Why is a preparation for self defence necessary? What is a standing army? How large is that of the United States? 348. How are standing armies regarded by many? 349. What other means ef national defence exist? What is a navy? What has been me

many frigates and other vessels as might be neceseary, and the remainder were to be laid up. A species of vessels, called gun boats, had been introduced, of which there were ordered to be built and purchased, during the period from the year 1803 to the year 1807, two hundred and seventy. Since that period, the navy has received due attention, and large appropriations have, from time to time, been made for its increase.

350. The strength of the navy of the United States in 1834, was as follows: 7 ships of the line, of 74 guns; 7 frigates of the first class, of 44 guns; 3 frigates of the second class, of 36 guns; 3 sloops of war, of 24 guns; 13 sloops of war, of 18 guns; and 67 schooners, of 18 guns; making, in all, 41 vessels. There were then building 5 ships of the line, of which one would carry 140 guns, and 7 frigates.

CHAPTER XXI.

Of the Militia.

351. THE surest means of national defence lies in the power of congress "to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions;" and in the power "to provide for organizing, arming and disciplining the militia; and for governing such part of them as may be employed in the service of the United States." This power the constitution gives exclusively to congress; reserving to the states, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by congress.

policy of the government with regard to a navy? 350. Whatisthe present strength of the navy of the United States?

351. What is deemed the surest means of national defence?

352. It is doubtful whether a constitution would have been adopted that placed the military force wholly under the orders of the national rulers. To attain uniformity in the organization and discipline of the militia, it was necessary that its regulation should be entrusted to the general government. The reservation to the states of the power to appoint officers, and to train the militia, while it left still in the hands of congress all necessary power on this subject, was deemed an essential restriction, in order to guard against the usurpation and abuse of this power by the general government.

353. The president is commander-in-chief of the militia when called into the actual service of the United States: when not in actual service of the nation, the militia is commanded by the governors of the states, and subordinate officers. The president has, by law, the power to call out the militia, whenever he shall judge it to be necessary, to repel invasions, or to suppress insurrections, within the United States; and he is to be the sole judge of the existence of the emergency requiring the militia to be called into service.

354. To those who object to thus placing the militia at the disposal of the president, it must be replied, that this power is to be exercised upon sudden emergencies, and when the action of congress may not be readily obtained. Neither is it a valid objection that the power may be abused; for all powers, by whomsoever exercised, are susceptible of abuse. The responsibility of the executive to the people, and the watchfulness of their representatives, are deemed sufficient security against usurpation or tyranny.

355. The militia, when called out, are subject to the rules of war; and the law imposes a fine upon every de

far does the power of congress on this subject extend? 352. What is reserved to the states? Why is this division of power made? 353. When is the president commander-in-chief? Who commands the militia at other times? Who is authorized to call out the militia? On what occasions? 354. Why is this power given to the executive? 355. What persons are liable to do military duty?

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