Hostilities 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 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. 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, every 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.

modern times has introduced into practice, although it may affect its exercise, can never impair the right itself; and whenever the Legislature chooses to bring it into operation, the judicial department must give it effect.

An

Until the legislative will, however, is distinctly declared, no power of condemnation can exist in the courts; and, from the structure of our government, 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. act of Congress simply declaring war, does not, by its own operation, so vest such property in the government as to support judicial proceedings for its seizure and condemnation; but vests merely a right, of which the assertion depends on the future action of the Legislature.*

III. 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, as was the case under the confederation, would have inverted a primary principle of the new Constitution, and, in practice, transferred the case of the common defence from the Federal head to the individual members of the Union. The various inconveniences which would attend the system of a separate organization of the national force must be obvious. They had been experienced during the war of our Revolution, and had proved that such a system was oppressive to some states, and dangerous to all. Under our present Constitution, sufficient reasons have appeared to induce an apprehension that the state governments

* 8 Cranch, 109.

are naturally prone to rivalship with the government of the Union; and if, in addition to this, their ambition were stimulated by the separate and independent possession of military forces, too strong a temptation and too great a facility would be given them to subvert the constitutional authority of the Union. The liberties of the people would, moreover, be less safe under such an arrangement than under that which leaves the national forces in the hands of the National Government. So far as an army may be likely, in this country, to become an instrument of ambition or power, it had better be at the disposal of that power of which the people are most apt to be jealous; for it is a truth which the experience of ages has attested, that the people are commonly most in danger when the means of invading their rights are at the command of those of whom they are the least suspicious. #

Standing armies in time of peace have, indeed, been objected to, as dangerous to our free institutions ; but there can scarcely be ground for such apprehension, from the nature of the Federal Government; while the impolicy of restraints on its discretion with respect to raising forces by land or sea, is manifest, from the consideration that the efficiency of the power depends on its being indefinite, and upon its extending to the maintaining them in peace as well as in war; for with no show of propriety could the force requisite for defence be limited by those who have no power to limit the strength and power of offence possessed by an enemy: nor, unless our government could set bounds to the ambition, injustice, or exertions of other nations, could restraints be safely imposed upon its discretion, or limits prescribed to it for self-preservation. Besides a readiness for war, in time of peace, is not only ne

cessary 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, from that very circumstance, would probably prove unavailing. A prohibition, therefore, against raising and maintaining armies and fleets in time of peace, would not only exhibit the extraordinary spectacle of a nation incapacitated by its constitution from preparing for defence before it was actually invaded, but would be altogether inconsistent with the public safety, and the exigencies of self-protection, unless by its constitution it could in like manner prohibit the preparations and establishments of every hostile power. The means of security can only be regulated by the means, probabilities, and dangers of attack; and it would be worse than useless to oppose constitutional barriers to the impulse of self-preservation, because it would imbody in the Constitution the temptation, if not the necessity of resorting to usurpations of extraordinary power, every precedent of which would be the excuse for unnecessary and multiplied repetitions of measures far more dangerous to public liberty than a standing army, in a country with a population and under a government like

ours.

The jealousy which would abolish our military establishments in time of peace, may be traced to those habits of thinking which the inhabitants of the United States derived from the people from which they sprung, and upon the prevailing sentiments on the subject at the period of our Revolution. As incident to the undefined and unrestricted power of making war, it was the acknowledged prerogative of the British crown to maintain, by its own authority, regular troops in time of peace. The abuse of this