Imatges de pàgina

the strongest evidence of the wisdom of the plan, and its skilful adaptation to the interests and convenience of the country. It was evidently the result of much profound reflection and great legal knowledge; and the system thus formed and reduced to practice, has been so successful and beneficial in its operation, that the administration of justice in the Federal Courts has been constantly rising in influence and reputation. In this review of the most important points which have arisen with respect to the constitutional powers of the judicial department, we have seen that it is competent, not only to pronounce on the constitutionality of laws of the United States, and on the validity of the constitutions and laws of the several states, and to declare either of them void, when repugnant to the Federal Constitution, or to a law or treaty of the Federal Government, but also to revise the judgments of a state court, enforcing any unconstitutional ordinance. We have seen, moreover, that the Federal Courts must either possess exclusive jurisdiction in all cases affecting the Constitution, laws, and treaties of the Union, or they must have power to review the judgments rendered on all such ques. tions by the state tribunals ; and that, so far as the latter power has hitherto been controverted, it has been sustained by the supreme national tribunal with great ability and success, and with equal learning, dignity, and discretion.




We are now to enter upon the second general division of our subject, which relates to "the nature, extent, and limitation of the powers vested in the Federal Government, and the restraints imposed by the Constitution on the states."

The powers conferred on the National Government may be reduced, as I have already mentioned, to different classes, as they relate to the following different objects, viz. :

First. Security from foreign danger.
Second. Intercourse with foreign nations.
Third. Harmony among the states.
Fourth. Miscellaneous objects of general utility.
Fifth. Restrictions on the powers of the states; and,

Sixth. Provisions for giving efficacy to the powers vested in the Union.

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, accordingly, the powers requisite to attaining it were effectually confided to the National Government, and consist,

1st. Of the powers of declaring war, and granting letters of marque and reprisal.

2d. Of making rules concerning captures by land and water.

3d. Of providing armies and fleets, and of regu

lating and calling forth the militia of the states ; and, as connected with these, the substantive and distinct power of levying taxes and borrowing money.

I. The right of self-defence is a part of the law of our 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. This is a fundamental principle of every social compact; and it is laid down by all approved writers on public law, that on this principle; an injury done or threatened to the perfect rights of a nation, or any of its members, and susceptible of no other redress, is just cause of war. But as the evils of war are certain, and its results doubtful, both wisdom and humanity require that every possible precaution should be taken, and every necessary preparation made, before engaging in it. It was formerly usual to precede hostilities by a public declaration communicated in form to the enemy; but 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.

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 of invasion as will not admit delay. So that this power of Congress is not only of its own nature exclusive, but its concurrent exercise is expressly prohibited; nor is it easy to conceive where else but in Congress it could be properly and prudently deposited. Although Congress alone, by its solemn act, passed, like other laws, according to the forms of the Constitution, can subject the nation to the hazardous events of war, yet the interposition of a smaller portion of the government has power to restore peace. Hóstilities may be terminated by a truce, which may be made by the President alone, as commander-inchief of the military forces of the Union, and of which the duration may be indefinite; while treaties, by which peace is completely restored, may be made, as we have seen, by the President and Senate, without the intervention of the House of Representatives.

As delay in making war may be sometimes detrimental to individuals who may have suffered from the depredations of foreign powers, Congress is invested also 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."* This power is, in all cases, plainly derived from that of making war. It induces, indeed, only an incomplete state of hostilities, but generally ends in their formal denunciation. 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. They are in the nature of a commission granted by the gov. ernment 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. And although this procedure seems to be dictated by Nature herself, yet the necessity is obvious, of calling on the sovereign power to determine when it may be resorted to; as, otherwise, evcry private individual might act as a judge in his own

* This is the literal meaning of the terms ; but the only practical distinction seems to be the one given in the note to Mr. Duponceau's valuable edition of Bynkershoek, p. 183, which is between Letters of Marque, and Letters of Marque and Reprisal. The latter, he says, is "the old technical expression for what we now call a privateer's commission; the former is applied to a vessel fitted out for war and merchandise, and armed merely for defence."

cause, and, to avenge his private injury, involve the nation to which he belongs in war.

II. The power of making "rules concerning captures on land and water," which is superadded to the constitutional 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. It is an express grant to Congress of the power of confiscating such property, as an independent substantive power, not included in the power of declaring war; and when a war breaks out, the question as to the disposition of enemy-property in the country, is a question of policy for the consideration of the National Legislature, and not proper for the consideration of the judicial power, which can only pursue that course in regard to such property as Congress may direct.* According to the best writers on the law of nations 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. But 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 the ulterior measures of the government, consequent upon the declaration of war. By a strict interpretation, indeed, of the ancient public law, war gives to a nation full right to tax the persons and confiscate the property of its enemy, wherever found; and the mitigation of this rule which the policy of

* 8 Cranch, .09.

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