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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.
§ 183. 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.
Power as to Army and Navy.
§ 139. 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 an unparalleled expense; and continual Auctuations 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. The burden 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 headway at all against an enemy, possessing a fine establishment, well appointed, well armed, well clothed, and well paid.
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. The consequence was (as is well known) general inefficiency, want of economy, mischievous delays, and great inequality of burdens. This is, doubtless, the reason, why the power is expressly given to Congress. It insures promptitude and unity of action, and, at the same time, promotes economy and harmony of operations. Nor is it in war only, that the power to raise armies may be usefully applied. It is important to suppress domestic rebellions and insurrections, and to prevent foreign aggressions and invasions. A nation, which is prepared for war in times of peace, will, thereby, often escape the necessity of engaging in war. Its rights will be respected, and its wrongs redressed. Imbecility and want of preparation invite aggression, and protract controversy.
§ 190. But, inasmuch as the power to raise armies may be perverted in times of peace to improper purposes, a restriction is imposed upon the grant of appropriations
by Congress for the maintenance of them. So that, at furthest, every two years, the propriety of retaining an existing army must regularly come before the Representatives of the people in Congress for consideration ; and if no appropriation is made, the army is necessarily disbanded. Thus, the army may, at any time within two years, be in effect dissolved, by a majority of Congress, without the consent of the President, by a simple refusal to grant supplies. In point of fact, Congress have hitherto made the appropriations annual, as they have a constitutional right to do, if it is deemed expedient. The power, therefore, is surrounded by all reasonable restrictions, as to its exercise ; and it has hitherto been used in a manner, which has conferred lasting benefits on the country.
$ 191. The next power of Congress is, " to provide, and maintain a navy." This power has the same general object, as that to raise armies. But, in its own nature, it is far more safe, and, for a maritime nation, quite as indispensable. No nation was ever deprived of its liberty by its navy. The same cannot be said of its army. And a commercial nation would be utterly without its due share of sovereignty upon the ocean, its means of selfprotection at home, and its power of efficient action abroad, without the possession of a navy. Yet this power, until a comparatively recent period, found little favor with some of our statesmen of no mean celebrity. It was not until the brilliant achievements of our little navy, during the late war, (1812–1814,) had shed a glory, as well as a protection, over our national flag in every sea, that the country became alive to its vast importance and efficiency. At present, it enjoys an extensive public favor, which, having been earned by the most gallant deeds, can scarcely fail of permanently engrafting it into the solid establishments of our national strength.
§ 192. The next power of Congress is, “ to make rules, for the government and regulation of the land and naval forces.” Upon the propriety of this power, as an incident to the preceding, it is unnecessary to enlarge. It is equally beyond the reach of cavil and complaint.
Power over Militia.
193. The next power of Congress is, “ to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” This is a natural incident to the duty, devolved on the General Government, of superintending the common defence, and providing for the general welfare in matters confided to it by the Constitution. There is but one of two alternatives, which can be resorted to in cases of insurrections, invasions, or violent oppositions to the execution of the laws ; either to employ regular troops, or to employ the militia In ordinary cases of riots and public disturbances, the magistracy of the country, with the assistance of the civil officers, and private individuals, may be sufficient to restore the public peace. But when force is contemplated by a discontented and lawless faction, it is manifest, that it must be met, and overthrown by force. Among a free people, there is a strong objection to the keeping up of a large standing army. But this will be indispensable, unless the power is delegated to command the services of the militia in such exigencies. The latter is, therefore, conferred on Congress, because it is the most safe, and the least obnoxious to popular jealousy. The employment of the militia is economical, and will generally be found to be efficient, in suppressing sudden and transitory insurrections, and invasions, and resistances of the laws.
$ 194. It is observable, that the power given to Congress over the militia is not limited as to the time of service, or as to the place of operation. And it is obvious, that to be effective, the power could not safely be limited in either respect; for it is impossible to foresee either the nature, or extent, or place, or duration, of the exigency, for which the militia might properly be called forth. It must